EN BANC provisions of presidential Decree No. 229 providing for the 2.
provisions of presidential Decree No. 229 providing for the
G.R. No. L-44640 October 12, 1976
PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,
vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE
NATIONAL TREASURER, respondents.
G.R. No. L-44684. October 12,1976
VICENTE M. GUZMAN, petitioner,
vs.
COMMISSION ELECTIONS, respondent.
G.R. No. L-44714. October 12,1976
RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO
SALAPANTAN, petitioners,
vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE
NATIONAL TREASURER, respondents.
MARTIN, J,:
The capital question raised in these prohibition suits with
preliminary injunction relates to the power of the incumbent
President of the Philippines to propose amendments to the
present Constitution in the absence of the interim National
Assembly which has not been convened.
On September 2, 1976, President Ferdinand E. Marcos issued
Presidential Decree No. 991 calling for a national referendum on
October 16, 1976 for the Citizens Assemblies ("barangays") to
resolve, among other things, the issues of martial law, the I .
assembly, its replacement, the powers of such replacement, the
period of its existence, the length of the period for tile exercise by
the President of his present powers.1
Twenty days after or on September 22, 1976, the President issued
another related decree, Presidential Decree No. 1031, amending
the previous Presidential Decree No. 991, by declaring the
2. The interim Batasang Pambansa shall have the same powers
manner of voting and canvass of votes in "barangays" (Citizens
Assemblies) applicable to the national referendum-plebiscite of
October 16, 1976. Quite relevantly, Presidential Decree No. 1031
repealed Section 4, of Presidential Decree No. 991, the full text of
which (Section 4) is quoted in the footnote below. 2
On the same date of September 22, 1976, the President issued
Presidential Decree No. 1033, stating the questions to be
submitted to the people in the referendum-plebiscite on October
16, 1976. The Decree recites in its "whereas" clauses that the
people's continued opposition to the convening of the National
Assembly evinces their desire to have such body abolished and
replaced thru a constitutional amendment, providing for a
legislative body, which will be submitted directly to the people in
the referendum-plebiscite of October 16.
The questions ask, to wit:
(1) Do you want martial law to be continued?
(2) Whether or not you want martial law to be continued, do you
approve the following amendments to the Constitution? For the
purpose of the second question, the referendum shall have the
effect of a plebiscite within the contemplation of Section 2 of
Article XVI of the Constitution.
PROPOSED AMENDMENTS:
1. There shall be, in lieu of the interim National Assembly, an
interim Batasang Pambansa. Members of the interim Batasang
Pambansa which shall not be more than 120, unless otherwise
provided by law, shall include the incumbent President of the
Philippines, representatives elected from the different regions of
the nation, those who shall not be less than eighteen years of age
elected by their respective sectors, and those chosen by the
incumbent President from the members of the Cabinet. Regional
representatives shall be apportioned among the regions in
accordance with the number of their respective inhabitants and
on the basis of a uniform and progressive ratio while the sectors
shall be determined by law. The number of representatives from
each region or sector and the, manner of their election shall be
prescribed and regulated by law.
and its members shall have the same functions, responsibilities,
rights, privileges, and disqualifications as the interim National
Assembly and the regular National Assembly and the members
thereof. However, it shall not exercise the power provided in
Article VIII, Section 14(l) of the Constitution.
3. The incumbent President of the Philippines shall, within 30 days
from the election and selection of the members, convene the
interim Batasang Pambansa and preside over its sessions until the
Speaker shall have been elected. The incumbent President of the
Philippines shall be the Prime Minister and he shall continue to
exercise all his powers even after the interim Batasang Pambansa
is organized and ready to discharge its functions and likewise he
shall continue to exercise his powers and prerogatives under the
nineteen hundred and thirty five. Constitution and the powers
vested in the President and the Prime Minister under this
Constitution.
4. The President (Prime Minister) and his Cabinet shall exercise all
the powers and functions, and discharge the responsibilities of
the regular President (Prime Minister) and his Cabinet, and shall
be subject only to such disqualifications as the President (Prime
Minister) may prescribe. The President (Prime Minister) if he so
desires may appoint a Deputy Prime Minister or as many Deputy
Prime Ministers as he may deem necessary.
5. The incumbent President shall continue to exercise legislative
powers until martial law shall have been lifted.
6. Whenever in the judgment of the President (Prime Minister),
there exists a grave emergency or a threat or imminence thereof,
or whenever the interim Batasang Pambansa or the regular
National Assembly fails or is unable to act adequately on any
matter for any reason that in his judgment requires immediate
action, he may, in order to meet the exigency, issue the necessary
decrees, orders or letters of instructions, which shall form part of
the law of the land.
7. The barangays and sanggunians shall continue as presently
constituted but their functions, powers, and composition may be
altered by law.
Referenda conducted thru the barangays and under the
Supervision of the Commission on Elections may be called at any
time the government deems it necessary to ascertain the will of
the people regarding any important matter whether of national
or local interest.
8. All provisions of this Constitution not inconsistent with any of
these amendments shall continue in full force and effect.
9. These amendments shall take effect after the incumbent
President shall have proclaimed that they have been ratified by I
majority of the votes cast in the referendum-plebiscite."
The Commission on Elections was vested with the exclusive
supervision and control of the October 1976 National
Referendum-Plebiscite.
On September 27, 1976, PABLO C. SANIDAD and PABLITO V.
SANIDAD, father and son, commenced L-44640 for Prohibition
with Preliminary Injunction seeking to enjoin the Commission on
Elections from holding and conducting the Referendum Plebiscite
on October 16; to declare without force and effect Presidential
Decree Nos. 991 and 1033, insofar as they propose amendments
to the Constitution, as well as Presidential Decree No. 1031,
insofar as it directs the Commission on Elections to supervise,
control, hold, and conduct the Referendum-Plebiscite scheduled
on October 16, 1976.
Petitioners contend that under the 1935 and 1973 Constitutions
there is no grant to the incumbent President to exercise the
constituent power to propose amendments to the new
Constitution. As a consequence, the Referendum-Plebiscite on
October 16 has no constitutional or legal basis.
On October 5, 1976, the Solicitor General filed the comment for
respondent Commission on Elections, The Solicitor General
principally maintains that petitioners have no standing to sue; the
issue raised is political in nature, beyond judicial cognizance of
this Court; at this state of the transition period, only the
incumbent President has the authority to exercise constituent
power; the referendum-plebiscite is a step towards
normalization.
On September 30, 1976, another action for Prohibition with
Preliminary Injunction, docketed as L-44684, was instituted by
VICENTE M. GUZMAN, a delegate to the 1971 Constitutional
Convention, asserting that the power to propose amendments to,
or revision of the Constitution during the transition period is
expressly conferred on the interim National Assembly under
Section 16, Article XVII of the Constitution.3
Still another petition for Prohibition with Preliminary Injunction
was filed on October 5, 1976 by RAUL M. GONZALES, his son
RAUL, JR., and ALFREDO SALAPANTAN, docketed as L- 44714, to
restrain the implementation of Presidential Decrees relative to
the forthcoming Referendum-Plebiscite of October 16.
These last petitioners argue that even granting him legislative
powers under Martial Law, the incumbent President cannot act as
a constituent assembly to propose amendments to the
Constitution; a referendum-plebiscite is untenable under the
Constitutions of 1935 and 1973; the submission of the proposed
amendments in such a short period of time for deliberation
renders the plebiscite a nullity; to lift Martial Law, the President
need not consult the people via referendum; and allowing 15-
.year olds to vote would amount to an amendment of the
Constitution, which confines the right of suffrage to those citizens
of the Philippines 18 years of age and above.
We find the petitions in the three entitled cases to be devoid of
merit.
I
Justiciability of question raised.
1. As a preliminary resolution, We rule that the petitioners in L-
44640 (Pablo C. Sanidad and Pablito V. Sanidad) possess locus
standi to challenge the constitutional premise of Presidential
Decree Nos. 991, 1031, and 1033. It is now an ancient rule that
the valid source of a stature Presidential Decrees are of such
nature-may be contested by one who will sustain a direct injuries
as a in result of its enforcement. At the instance of taxpayers, laws
providing for the disbursement of public funds may be enjoined,
upon the theory that the expenditure of public funds by an officer
of the State for the purpose of executing an unconstitutional act
constitutes a misapplication of such funds. 4 The breadth of
Presidential Decree No. 991 carries all appropriation of Five
Million Pesos for the effective implementation of its purposes. 5
Presidential Decree No. 1031 appropriates the sum of Eight
Million Pesos to carry out its provisions. 6 The interest of the
aforenamed petitioners as taxpayers in the lawful expenditure of
these amounts of public money sufficiently clothes them with
that personality to litigate the validity of the Decrees
appropriating said funds. Moreover, as regards taxpayer's suits,
this Court enjoys that open discretion to entertain the same or
not. 7 For the present case, We deem it sound to exercise that
discretion affirmatively so that the authority upon which the
disputed Decrees are predicated may be inquired into.
2. The Solicitor General would consider the question at bar as a
pure political one, lying outside the domain of judicial review. We
disagree. The amending process both as to proposal and
ratification, raises a judicial question. 8This is especially true in
cases where the power of the Presidency to initiate the of
normally exercised by the legislature, is seriously doubted. Under
the terms of the 1973 Constitution, the power to propose
amendments o the constitution resides in the interim National
Assembly in the period of transition (See. 15, Transitory
provisions). After that period, and the regular National Assembly
in its active session, the power to propose amendments becomes
ipso facto the prerogative of the regular National Assembly (Sec.
1, pars. 1 and 2 of Art. XVI, 1973 constitution). The normal course
has not been followed. Rather than calling the National Assembly
to constitute itself into a constituent assembly the incumbent
President undertook the proposal of amendments and submitted
the proposed amendments thru Presidential Decree 1033 to the
people in a Referendum-Plebiscite on October 16. Unavoidably,
the regularity regularity of the procedure for amendments,
written in lambent words in the very Constitution sought to be
amended, raises a contestable issue. The implementing
Presidential Decree Nos. 991, 1031, and 1033, which commonly
purport to have the force and effect of legislation are assailed as
invalid, thus the issue of the validity of said Decrees is plainly a
justiciable one, within the competence of this Court to pass upon.
Section 2 (2), Article X of the new Constitution provides: "All cases
involving the constitutionality of a treaty, executive agreement,
or law may shall be heard and decided by the Supreme Court en
banc and no treaty, executive agreement, or law may be declared
unconstitutional without the concurrence of at least ten
Members. ..." The Supreme Court has the last word in the
construction not only of treaties and statutes, but also of the
Constitution itself The amending, like all other powers organized
in the Constitution, is in form a delegated and hence a limited
power, so that the Supreme Court is vested with that authorities
to determine whether that power has been discharged within its
limits.
Political questions are neatly associated with the wisdom, of the
legality of a particular act. Where the vortex of the controversy
refers to the legality or validity of the contested act, that matter
is definitely justiciable or non-political. What is in the heels of the
Court is not the wisdom of the act of the incumbent President in
proposing amendments to the Constitution, but his constitutional
authority to perform such act or to assume the power of a
constituent assembly. Whether the amending process confers on
the President that power to propose amendments is therefore a
downright justiciable question. Should the contrary be found, the
actuation of the President would merely be a brutum fulmen. If
the Constitution provides how it may be amended, the judiciary
as the interpreter of that Constitution, can declare whether the
procedure followed or the authority assumed was valid or not. 10
We cannot accept the view of the Solicitor General, in pursuing
his theory of non-justiciability, that the question of the President's
authority to propose amendments and the regularity of the
procedure adopted for submission of the proposal to the people
ultimately lie in the judgment of the A clear Descartes fallacy
of vicious circle. Is it not that the people themselves, by their
sovereign act, provided for the authority and procedure for the
amending process when they ratified the present Constitution in
1973? Whether, therefore, the constitutional provision has been
followed or not is the proper subject of inquiry, not by the people
themselves of course who exercise no power of judicial but by the
Supreme Court in whom the people themselves vested that
power, a power which includes the competence to determine
whether the constitutional norms for amendments have been
observed or not. And, this inquiry must be done a prior not a
posterior i.e., before the submission to and ratification by the
people.
Indeed, the precedents evolved by the Court or, prior
constitutional cases underline the preference of the Court's
majority to treat such issue of Presidential role in the amending
process as one of non-political impression. In the Plebiscite
Cases, 11 the contention of the Solicitor General that the issue on
the legality of Presidential Decree No. 73 "submitting to the
Pilipino people (on January 15, 1973) for ratification or rejection
the Constitution of the Republic of the Philippines proposed by
the 1971 Constitutional Convention and appropriating fund s
therefore "is a political one, was rejected and the Court
unanimously considered the issue as justiciable in nature.
Subsequently in the Ratification Cases12 involving the issue of
whether or not the validity of Presidential Proclamation No. 1102.
announcing the Ratification by the Filipino people of the
constitution proposed by the 1971 Constitutional Convention,"
partakes of the nature of a political question, the affirmative
stand of' the Solicitor General was dismissed, the Court ruled that
the question raised is justiciable. Chief Justice Concepcion,
expressing the majority view, said, Thus, in the aforementioned
plebiscite cases, We rejected the theory of the respondents
therein that the question whether Presidential Decree No. 73
calling a plebiscite to be held on January 15, 1973, for the
ratification or rejection of the proposed new Constitution, was
valid or not, was not a proper subject of judicial inquiry because,
they claimed, it partook of a political nature, and We unanimously
declared that the issue was a justiciable one. With Identical
unanimity. We overruled the respondent's contention in the 1971
habeas corpus cases, questioning Our authority to determine the
constitutional sufficiency of the factual bases of the Presidential
proclamation suspending the privilege of the writ of habeas
corpus on August 21, 1971, despite the opposite view taken by
this Court in Barcelon vs. Baker and Montenegro vs. Castaneda,
insofar as it adhered to the former case, which view We,
accordingly, abandoned and refused to apply. For the same
reason, We did not apply and expressly modified, in Gonzales vs.
Commission on Elections, the political-question theory adopted in
Mabanag vs. Lopez Vito." 13 The return to Barcelon vs. Baker and
Mabanag vs. Lopez Vito, urged by the Solicitor General, was
decisively refused by the Court. Chief Justice Concepcion
continued: "The reasons adduced in support thereof are,
however, substantially the same as those given in support on the
political question theory advanced in said habeas corpus and
plebiscite cases, which were carefully considered by this Court
and found by it to be legally unsound and constitutionally
untenable. As a consequence. Our decisions in the
aforementioned habeas corpus cases partakes of the nature and
effect of a stare decisis which gained added weight by its virtual
reiteration."
II
The amending process as laid out
in the new Constitution.
1. Article XVI of the 1973 Constitution on Amendments ordains:
SECTION 1. (1) Any amendment to, or revision
of, this Constitution may be proposed by the
National Assembly upon a vote of three-fourths
of all its Members, or by a constitutional
convention. (2) The National Assembly may, by
a vote of two-thirds of all its Members, call a
constitutional convention or, by a majority vote
of all its Members, submit the question of
calling such a convention to the electorate in an
election.
SECTION 2. Any amendment to, or revision of,
this Constitution shall be valid when ratified by
a majority of the votes cast in a plebiscite which
shall be held not later than three months after
the approval of such amendment or revision.
In the present period of transition, the interim National Assembly
instituted in the Transitory Provisions is conferred with that
amending power. Section 15 of the Transitory Provisions reads:
SECTION 15. The interim National Assembly,
upon special call by the interim Prime Minister,
may, by a majority vote of all its Members,
propose amendments to this Constitution. Such
amendments shall take effect when ratified in
accordance with Article Sixteen hereof.
There are, therefore, two periods contemplated in the
constitutional life of the nation, i.e., period of normalcy and
period of transition. In times of normally, the amending process
may be initiated by the proposals of the (1) regular National
Assembly upon a vote of three-fourths of all its members; or (2)
by a Constitutional Convention called by a vote of two-thirds of all
the Members of the National Assembly. However the calling of a
Constitutional Convention may be submitted to the electorate in
an election voted upon by a majority vote of all the members of
the National Assembly. In times of transition, amendments may
be proposed by a majority vote of all the Members of the National
Assembly upon special call by the interim Prime Minister,.
2. This Court in Aquino v. COMELEC," had already settled that the
incumbent President is vested with that prerogative of discretion
as to when he shall initially convene the interim National
Assembly. Speaking for the majority opinion in that case, Justice
Makasiar said: "The Constitutional Convention intended to leave
to the President the determination of the time when he shall
initially convene the interim National Assembly, consistent with
the prevailing conditions of peace and order in the country."
Concurring, Justice Fernandez, himself a member of that
Constitutional Convention, revealed: "(W)hen the Delegates to
the Constitutional Convention voted on the Transitory Provisions,
they were aware of the fact that under the same, the incumbent
President was given the discretion as to when he could convene
the interim National Assembly; it was so stated plainly by the
sponsor, Delegate Yaneza; as a matter of fact, the proposal that it
be convened 'immediately', made by Delegate Pimentel (V) was
rejected. The President's decision to defer the convening of the
interim National Assembly soon found support from the people
themselves. In the plebiscite of January 10-15, 1973, at which the
ratification of the 1973 Constitution was submitted, the people
voted against the convening of the interim National Assembly. In
the referendum of July 24, 1973, the Citizens Assemblies
("bagangays") reiterated their sovereign will to withhold the
convening of the interim National Assembly. Again, in the
referendum of February 27, 1975, the proposed question of
whether the interim National Assembly shall be initially convened
was eliminated, because some of the members of Congress and
delegates of the Constitutional Convention, who were deemed
automatically members of the I interim National Assembly, were
against its inclusion since in that referendum of January, 1973, the
people had already resolved against it.
3. In sensu strictiore, when the legislative arm of the state
undertakes the proposals of amendment to a Constitution, that
body is not in the usual function of lawmaking. lt is not legislating
when engaged in the amending process.16 Rather, it is exercising
a peculiar power bestowed upon it by the fundamental charter
itself. In the Philippines, that power is provided for in Article XVI
of the 1973 Constitution (for the regular National Assembly) or in
Section 15 of the Transitory Provisions (for the National
Assembly). While ordinarily it is the business of the legislating
body to legislate for the nation by virtue of constitutional
conferment amending of the Constitution is not legislative in
character. In political science a distinction is made between
constitutional content of an organic character and that of a
legislative character'. The distinction, however, is one of policy,
not of law.17 Such being the case, approval of the President of any
proposed amendment is a misnomer 18 The prerogative of the
President to approve or disapprove applies only to the ordinary
cases of legislation. The President has nothing to do with
proposition or adoption of amendments to the Constitution. 19
III
Concentration of Powers
in the President during
crisis government.
1. In general, the governmental powers in crisis government the
Philippines is a crisis government today are more or less
concentrated in the President. 20 According to Rossiter, "(t)he
concentration of government power in a democracy faced by an
emergency is a corrective to the crisis inefficiencies inherent in
the doctrine of the separation of powers. In most free states it has
generally been regarded as imperative that the total power of the
government be parceled out among three mutually independent
branches executive, legislature, and judiciary. It is believed to be
destructive of constitutionalism if any one branch should exercise
any two or more types of power, and certainly a total disregard of
the separation of powers is, as Madison wrote in the Federalist,
No. 47, 'the very definition of tyranny.' In normal times the
separation of powers forms a distinct obstruction to arbitrary
governmental action. By this same token, in abnormal times it
may form an insurmountable barrier to a decisive emergency
action in behalf of the state and its independent existence. There
are moments in the life of any government when all powers must
work together in unanimity of purpose and action, even if this
means the temporary union of executive, legislative, and judicial
power in the hands of one man. The more complete the
separation of powers in a constitutional system, the more difficult
and yet the more necessary will be their fusion in time of crisis.
This is evident in a comparison of the crisis potentialities of the
cabinet and presidential systems of government. In the former
the all-important harmony of legislature and executive is taken
for granted; in the latter it is neither guaranteed nor to be to
confidently expected. As a result, cabinet is more easily
established and more trustworthy than presidential dictatorship.
The power of the state in crisis must not only be concentrated and
expanded; it must also be freed from the normal system of
constitutional and legal limitations. 21 John Locke, on the other
hand, claims for the executive in its own right a broad discretion
capable even of setting aside the ordinary laws in the meeting of
special exigencies for which the legislative power had not
provided. 22 The rationale behind such broad emergency powers
of the Executive is the release of the government from "the
paralysis of constitutional restrains" so that the crisis may be
ended and normal times restored.
2. The presidential exercise of legislative powers in time of martial
law is now a conceded valid at. That sun clear authority of the
President is saddled on Section 3 (pars. 1 and 2) of the Transitory
Provisions, thus:23
The incumbent President of the Philippines
shall initially convene the interim National
Assembly and shall preside over its sessions
until the interim Speaker shall have been
elected. He shall continue to exercise his
powers and prerogatives under the nineteen
hundred and thirty-five Constitution and the
powers vested in the President and the Prime
Minister under this Constitution until the calls
upon the interim National Assembly to elect the
interim President and the interim Prime
Minister, who shall then exercise their
respective powers vested by this Constitution.
 All proclamations, orders, decrees, instructions,
and acts promulgated, issued, or done by the
incumbent President shall be part of the law of
the land, and shall remain valid, binding, and
effective even after lifting of martial law or the
ratification of this Constitution, unless
modified, revoked, or superseded by
subsequent proclamations, orders, decrees,
instructions, or other acts of the incumbent
President, or unless expressly and explicitly
modified or repealed by the regular National
Assembly.
"It is unthinkable," said Justice Fernandez, a 1971 Constitutional
Convention delegate, "that the Constitutional Convention, while
giving to the President the discretion when to call the interim
National Assembly to session, and knowing that it may not be
convened soon, would create a vacuum in the exercise of
legislative powers. Otherwise, with no one to exercise the
lawmaking powers, there would be paralyzation of the entire
governmental machinery." 24 Paraphrasing Rossiter, this is an
extremely important factor in any constitutional dictatorship
which extends over a period of time. The separation of executive
and legislature ordained in the Constitution presents a distinct
obstruction to efficient crisis government. The steady increase in
executive power is not too much a cause for as the steady
increase in the magnitude and complexity of the problems the
President has been called upon by the Filipino people to solve in
their behalf, which involve rebellion, subversion, secession,
recession, inflation, and economic crisis-a crisis greater than war.
In short, while conventional constitutional law just confines the
President's power as Commander-in-Chief to the direction of the
operation of the national forces, yet the facts of our political,
social, and economic disturbances had convincingly shown that in
meeting the same, indefinite power should be attributed to tile
President to take emergency measures 25
IV
Authority of the incumbent
President t to propose
amendments to the Constitution.
1. As earlier pointed out, the power to legislate is constitutionally
consigned to the interim National Assembly during the transition
period. However, the initial convening of that Assembly is a
matter fully addressed to the judgment of the incumbent
President. And, in the exercise of that judgment, the President
opted to defer convening of that body in utter recognition of the
people's preference. Likewise, in the period of transition, the
power to propose amendments to the Constitution lies in the
interim National Assembly upon special call by the President (See.
15 of the Transitory Provisions). Again, harking to the dictates of
the sovereign will, the President decided not to call the interim
National Assembly. Would it then be within the bounds of the
Constitution and of law for the President to assume that
constituent power of the interim Assembly vis-a-vis his
assumption of that body's legislative functions? The answer is yes.
If the President has been legitimately discharging the legislative
functions of the interim Assembly, there is no reason why he
cannot validly discharge the function of that Assembly to propose
amendments to the Constitution, which is but adjunct, although
peculiar, to its gross legislative power. This, of course, is not to say
that the President has converted his office into a constituent
assembly of that nature normally constituted by the legislature.
Rather, with the interim National Assembly not convened and
only the Presidency and the Supreme Court in operation, the
urges of absolute necessity render it imperative upon the
President to act as agent for and in behalf of the people to
propose amendments to the Constitution. Parenthetically, by its
very constitution, the Supreme Court possesses no capacity to
propose amendments without constitutional infractions. For the
President to shy away from that actuality and decline to
undertake the amending process would leave the governmental
machineries at a stalemate or create in the powers of the State a
destructive vacuum, thereby impeding the objective of a crisis
government "to end the crisis and restore normal times." In these
parlous times, that Presidential initiative to reduce into concrete
forms the constant voices of the people reigns supreme. After all,
constituent assemblies or constitutional conventions, like the
President now, are mere agents of the people .26
2. The President's action is not a unilateral move. As early as the
referendums of January 1973 and February 1975, the people had
already rejected the calling of the interim National Assembly. The
Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian,
the Pambansang Katipunan ng mga Barangay, and the
Pambansang Katipunan ng mga Barangay, representing 42,000
barangays, about the same number of Kabataang Barangay
organizations, Sanggunians in 1,458 municipalities, 72 provinces,
3 sub-provinces, and 60 cities had informed the President that the
prevailing sentiment of the people is for the abolition of the
interim National Assembly. Other issues concerned the lifting of
martial law and amendments to the Constitution .27 The national
organizations of Sangguniang Bayan presently proposed to settle
the issues of martial law, the interim Assembly, its replacement,
the period of its existence, the length of the period for the
exercise by the President of its present powers in a referendum
to be held on October 16 . 28 The Batasang Bayan (legislative
council) created under Presidential Decree 995 of September 10,
1976, composed of 19 cabinet members, 9 officials with cabinet
rank, 91 members of the Lupong Tagapagpaganap (executive
committee) of the Katipunan ng mga Sangguniang Bayan voted in
session to submit directly to the people in a plebiscite on October
16, the previously quoted proposed amendments to the
Constitution, including the issue of martial law .29 Similarly, the
"barangays" and the "sanggunians" endorsed to the President the
submission of the proposed amendments to the people on
October 16. All the foregoing led the President to initiate the
proposal of amendments to the Constitution and the subsequent
issuance of Presidential Decree No, 1033 on September 22, 1976
submitting the questions (proposed amendments) to the people
in the National Referendum-Plebiscite on October 16.
V
The People is Sovereign
1. Unlike in a federal state, the location of sovereignty in a unitary
state is easily seen. In the Philippines, a republican and unitary
state, sovereignty "resides in the people and all government
authority emanates from them .30 In its fourth meaning, Savigny
would treat people as "that particular organized assembly of
individuals in which, according to the Constitution, the highest
power exists." 31 This is the concept of popular sovereignty. It
means that the constitutional legislator, namely the people, is
sovereign 32 In consequence, the people may thus write into the
Constitution their convictions on any subject they choose in the
absence of express constitutional prohibition. 33 This is because,
as Holmes said, the Constitution "is an experiment, as all life is all
experiment."34 "The necessities of orderly government," wrote
Rottschaefer, "do not require that one generation should be
permitted to permanently fetter all future generations." A
constitution is based, therefore, upon a self-limiting decision of
the people when they adopt it. 35
2. The October 16 referendum-plebiscite is a resounding call to
the people to exercise their sovereign power as constitutional
legislator. The proposed amendments, as earlier discussed,
proceed not from the thinking of a single man. Rather, they are
the collated thoughts of the sovereign will reduced only into
enabling forms by the authority who can presently exercise the
powers of the government. In equal vein, the submission of those
proposed amendments and the question of martial law in a
referendum-plebiscite expresses but the option of the people
themselves implemented only by the authority of the President.
Indeed, it may well be said that the amending process is a
sovereign act, although the authority to initiate the same and the
procedure to be followed reside somehow in a particular body.
VI
Referendum-Plebiscite not
rendered nugatory by the
participation of the 15-year olds.
1. October 16 is in parts a referendum and a plebiscite. The
question - (1) Do you want martial law to be continued? - is a
referendum question, wherein the 15-year olds may participate.
This was prompted by the desire of the Government to reach the
larger mas of the people so that their true pulse may be felt to
guide the President in pursuing his program for a New Order. For
the succeeding question on the proposed amendments, only
those of voting age of 18 years may participate. This is the
plebiscite aspect, as contemplated in Section 2, Article XVI of the
new Constitution. 36 On this second question, it would only be the
votes of those 18 years old and above which will have valid
bearing on the results. The fact that the voting populace are
simultaneously asked to answer the referendum question and the
plebiscite question does not infirm the referendum-plebiscite.
There is nothing objectionable in consulting the people on a given
issue, which is of current one and submitting to them for
ratification of proposed constitutional amendments. The fear of
commingled votes (15-year olds and 18-year olds above) is readily
dispelled by the provision of two ballot boxes for every barangay
center, one containing the ballots of voters fifteen years of age
and under eighteen, and another containing the ballots of voters
eighteen years of age and above. 37 The ballots in the ballot box
for voters fifteen years of age and under eighteen shall be
counted ahead of the ballots of voters eighteen years and above
contained in another ballot box. And, the results of the
referendum-plebiscite shall be separately prepared for the age
groupings, i.e., ballots contained in each of the two boxes.38
2. It is apt to distinguish here between a "referendum" and a
"plebiscite." A "referendum" is merely consultative in character.
It is simply a means of assessing public reaction to the given issues
submitted to the people foe their consideration, the calling of
which is derived from or within the totality of the executive power
of the President.39 It is participated in by all citizens from the age
of fifteen, regardless of whether or not they are illiterates, feeble-
minded, or ex- convicts .40 A "plebiscite," on the other hand,
involves the constituent act of those "citizens of the Philippines
not otherwise disqualified by law, who are eighteen years of age
or over, and who shall have resided in the Philippines for at least
one year and in the place wherein they propose to vote for at least
six months preceding the election Literacy, property or any other
substantive requirement is not imposed. It is generally associated
with the amending process of the Constitution, more particularly,
the ratification aspect.
VII
1. There appeals to be no valid basis for the claim that the regime
of martial law stultifies in main the freedom to dissent. That
speaks of a bygone fear. The martial law regime which, in the
observation of Justice Fernando, 41 is impressed with a mild
character recorded no State imposition for a muffled voice. To be
sure, there are restraints of the individual liberty, but on certain
grounds no total suppression of that liberty is aimed at. The for
the referendum-plebiscite on October 16 recognizes all the
embracing freedoms of expression and assembly The President
himself had announced that he would not countenance any
suppression of dissenting views on the issues, as he is not
interested in winning a "yes" or "no" vote, but on the genuine
sentiment of the people on the issues at hand. 42 Thus, the
dissenters soon found their way to the public forums, voicing out
loud and clear their adverse views on the proposed amendments
and even (in the valid ratification of the 1973 Constitution, which
is already a settled matter.43 Even government employees have
been held by the Civil Service Commission free to participate in
public discussion and even campaign for their stand on the
referendum-plebiscite issues.44
VIII
Time for deliberation
is not short.
1. The period from September 21 to October 16 or a period of 3
weeks is not too short for free debates or discussions on the
referendum-plebiscite issues. The questions are not new. They
are the issues of the day. The people have been living with them
since the proclamation of martial law four years ago. The
referendums of 1973 and 1975 carried the same issue of martial
law. That notwithstanding, the contested brief period for
discussion is not without counterparts in previous plebiscites for
constitutional amendments. Justice Makasiar, in the Referendum
Case, recalls: "Under the old Society, 15 days were allotted for the
publication in three consecutive issues of the Official Gazette of
the women's suffrage amendment to the Constitution before the
scheduled plebiscite on April 30, 1937 (Com. Act No. 34). The
constitutional amendment to append as ordinance the
complicated Tydings-Kocialskowski was published in only three
consecutive issues of the Official Gazette for 10 days prior to the
scheduled plebiscite (Com. Act 492). For the 1940 Constitutional
amendments providing for the bicameral Congress, the reelection
of the President and Vice President, and the creation of the
Commission on Elections, 20 days of publication in three
consecutive issues of the Official Gazette was fixed (Com Act No.
517). And the Parity Amendment, an involved constitutional
amendment affecting the economy as well as the independence
of the Republic was publicized in three consecutive issues of the
Official Gazette for 20 days prior to the plebiscite (Rep. Act No.
73)."45
2. It is worthy to note that Article XVI of the Constitution makes
no provision as to the specific date when the plebiscite shall be
held, but simply states that it "shall be held not later than three
months after the approval of such amendment or revision." In
Coleman v. Miller, 46 the United States Supreme court held that
this matter of submission involves "an appraisal of a great variety
of relevant conditions, political, social and economic," which "are
essentially political and not justiciable." The constituent body or
in the instant cases, the President, may fix the time within which
the people may act. This is because proposal and ratification are
not treated as unrelated acts, but as succeeding steps in a single
endeavor, the natural inference being that they are not to be
widely separated in time; second, it is only when there is deemed
to be a necessity therefor that amendments are to be proposed,
the reasonable implication being that when proposed, they are to
be considered and disposed of presently, and third, ratification is
but the expression of the approbation of the people, hence, it
must be done contemporaneously. 47 In the words of Jameson,
"(a)n alteration of the Constitution proposed today has relation
to the sentiment and the felt needs of today, and that, if not
ratified early while that sentiment may fairly be supposed to exist.
it ought to be regarded as waived, and not again to be voted upon,
unless a second time proposed by proper body
IN RESUME
The three issues are
1. Is the question of the constitutionality of Presidential Decrees
Nos. 991, 1031 and 1033 political or justiciable?
2. During the present stage of the transition period, and under,
the environmental circumstances now obtaining, does the
President possess power to propose amendments to the
Constitution as well as set up the required machinery and
prescribe the procedure for the ratification of his proposals by the
people?
3. Is the submission to the people of the proposed amendments three petitions at bar. For reasons as expressed in his separate
within the time frame allowed therefor a sufficient and proper opinion, Associate Justice Fernando concurs in the result.
submission? Associate Justices Teehankee and Munoz Palma voted to grant
the petitions.
Upon the first issue, Chief Justice Fred Ruiz Castro and Associate
Justices Enrique M. Fernando, Claudio Teehankee, Antonio P. ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions
Barredo, Cecilia Munoz Palma, Hermogenes Concepcion Jr. and are hereby dismissed. This decision is immediately executory.
Ruperto G. Martin are of the view that the question posed is
justiciable, while Associate Justices Felix V. Makasiar, Felix Q. SO ORDERED.
Antonio and Ramon C. Aquino hold the view that the question is
political. Aquino, J, in the result.
Upon the second issue, Chief Justice Castro and Associate Justices Separate Opinions
Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin
voted in the affirmative, while Associate Justices Teehankee and
CASTRO, C.J.:, concurring:
Munoz Palma voted in the negative. Associate Justice Fernando,
conformably to his concurring and dissenting opinion in Aquino
From the challenge as formulated in the three petitions at bar and
vs. Enrile (59 SCRA 183), specifically dissents from the proposition
the grounds advanced be the Solicitor General in opposition
that there is concentration of powers in the Executive during
thereto, as well as the arguments adduced by the counsels of the
periods of crisis, thus raising serious doubts as to the power of the
parties at the hearing had on October 7 and 8, 1976, three vital
President to propose amendments.
issues readily project themselves as the centers of controversy,
namely:
Upon the third issue, Chief Justice Castro and Associate Justices
Barredo, Makasiar, Aquino, Concepcion Jr. and Martin are of the
(1) Is the question of the constitutionality of Presidential Decrees
view that there is a sufficient and proper submission of the
Nos. 991, 1031 and 1033 political or justiciable?
proposed amendments for ratification by the people. Associate
Justices Barredo and Makasiar expressed the hope, however that
the period of time may be extended. Associate Justices Fernando, (2) During the present stage of the transition period, and under
Makasiar and Antonio are of the view that the question is political the environmental circumstances now obtaining, does the
and therefore beyond the competence and cognizance of this President possess power to propose amendments to the
Court, Associate Justice Fernando adheres to his concurrence in Constitution as well as set up the required machineries and
the opinion of Chief Justice Concepcion in Gonzales vs. COMELEC prescribe the procedure for the ratification of his proposals by the
(21 SCRA 774).Associate Justices Teehankee and MUNOZ Palma people?
hold that prescinding from the President's lack of authority to
exercise the constituent power to propose the amendments, etc., (3) Is the submission to the people of the proposed amendments
as above stated, there is no fair and proper submission with within the time frame allowed therefor a sufficient and proper,
sufficient information and time to assure intelligent consent or submission"
rejection under the standards set by this Court in the controlling
cases of Gonzales, supra, and Tolentino vs. COMELEC (41 SCRA I
702).
First Issue
Chief Justice Castro and Associate Justices Barredo, Makasiar,
Antonio, Aquino, Concepcion Jr. and Martin voted to dismiss the
The threshold question is not at all one of first impression
Specifically on the matter of proposals to amend the Constitution,
this Court, in Mabanag vs. Lopez Vito (78 Phil. 1), inceptively
announced the dictum that-
Proposal to amend the Constitution is a highly
political function performed by the Congress in
its sovereign legislative capacity and committed
to its charges by the Constitution itself. The
exercise of this power is even independent of
any intervention by the Chief Executive. If on
grounds of expediency scrupulous attention of
the judiciary be needed to safeguard public
interest, there is less reason for judicial inquiry
into the validity of a proposal than into that of
a ratification.
In time, however, the validity of the said pronouncement was
eroded. In the assessment of the Court itself-
The force of this precedent has been weakened, however, by
Suanes vs. Chief Accountant of the Senate (81 Phil. 818), Avelino
vs. Cuenco (L-2581, March 4 and 14, 1949), Tanada vs. Cuenco (L-
10520, February 28, 1957), and Macias vs. Commission on
Elections (L-18684, September 14, 1961).
xxx xxx xxx
In short, the issue whether or not a Resolution of Congress-acting
as a constituent assembly-violates the Constitution is essentially
justiciable, not political, and, hence, subject to judicial review,
and, to the extent this view may be inconsistent with the stand
taken in Mabanag vs. Lopez Vito the latter should be deemed
modified accordingly. The Members of the Court are unanimous
on this point." (Gonzales vs. Commission on Elections, et al, L-
28196, November 9, 1967, 21 SCRA 774, 786-787).
The abandonment of the Mabanag vs. Lopez Vito doctrine
appears to have been completed when, in Javellana vs. Secretary,
et al. (L-36142, March 3l, 1973, 50 SCRA 30), six members of the
Court concurred in the view that the question of whether the
1973 Constitution was ratified in accordance with the provisions
of Article XV (Amendments) of the 1935 Constitution is inherently
and essentially justiciable.
As elucidated therein, with extensive quotations from Tanada vs.
Cuenco (103 Phil. 1051)-
... the term 'political question' connotes, in legal
parlance, what it means in ordinarily parlance,
namely, a question of policy in matters
concerning the government of a State, as a body
politic. In other words, in the language of
Corpus Juris Secundum (supra), it refers to
'those questions which, under the Constitution,
are to be decided by the people in their
sovereign capacity, or in regard to which full
discretionary authority has been delegated to
the Legislature or executive branch of the
government.' It is concerned with issues
dependent upon the wisdom, not legality, of a
particular measure.'
Accordingly, when the grant of power is qualified, conditional or
subject to limitations, the issue on whether or not the prescribed
qualifications or conditions have been met, or the limitations
respected, is justiciable or non-political, the crux of the problem
being one of legality or validity of the contested act, not its
wisdom. Otherwise, said qualifications, conditions or limitations -
particularly those prescribed or imposed by the Constitution -
would be set at naught." (Javellana vs. Executive Secretary,
supra).
So it is in the situation here presented. The basic issue is the
constitutional validity of the presidential acts of proposing
amendments to the Constitution and of calling a referendum-
plebiscite for the ratification of the proposals made. Evidently, the
question does not concern itself with the wisdom of the exercise
of the authority claimed or of the specific amendments proposed.
Instead the inquiry vel non is focused solely on the existence of
the said power in the President - a question purely of legality
determinable thru interpretation and construction of the letter
and spirit of the Constitution by the Court as the final arbiter in
the delineation of constitutional boundaries and the allocation of
constitutional powers.
For the Court to shun cognizance of the challenge herein
presented, especially in these parlous years, would be to abdicate
its constitutional powers, shirk its constitutional responsibility,
and deny the people their ultimate recourse for judicial
determination.
I have thus no hesitancy in concluding that the question here
presented is well within the periphery of judicial inquiry.
II
Second Issue
The main question stands on a different footing; it appears
unprecedented both here and elsewhere. Its solution, I believe,
can be found and unraveled only by a critical assessment of the
existing legal order in the light of the prevailing political and
factual milieu.
To be sure, there is an impressive array of consistent
jurisprudence on the proposition that, normally or under normal
conditions, a Constitution may be amended only in accord with
the procedure set forth therein. Hence, if there be any such
prescription for the amendatory process as invariable there is
because one of the essential parts of a Constitution is the so-
called "constitution of sovereignty" which comprises the
provision or provisions on the modes in accordance with which
formal changes in the fundamental law may be effected the same
would ordinarily be the controlling criterion for the validity of the
amendments sought.
Unfortunately, however, during the present transition period of
our political development, no express provision is extant in the
Constitution regarding the agency or agent by whom and the
procedure by which amendments thereto may be proposed and
ratified fact overlooked by those who challenge the validity of the
presidential acts in the premises. This is so because there are at
least two distinctly in the transition from the old system of
government under the 1935 Constitution to the new one
established by the 1973 Constitution.
The first stage comprises the period from the effectivity of the
Constitution on January 17, 1973 to the time the National
Assembly is convened by the incumbent President and the interim
President and the interim Prime Minister are chosen Article XVII,
Sections 1 and 3[1]. The existence of this stage as an obvious fact
of the nation's political life was recognized by the Court in Aquino
vs. Commission on Elections, et al. (L-40004, January 31, 1975, 62
SCRA 275), when it rejected the claim that, under the 1973
Constitution, the President was in duty bound to convene the
interim National Assembly soon after the Constitution took
effect.
The second stage embraces the period from the date the interim
National Assembly is convened to the date the Government
described in Articles VII to IX of the Constitution is inaugurated,
following the election of the members of the regular National
Assembly (Article XVII, Section 1) and the election of the regular
President and Prime Minister,. This is as it should be because it is
recognized that the President has been accorded the discretion to
determine when he shall initially convene the interim National
Assembly, and his decision to defer the convocation thereof has
found overwhelming support by the sovereign people in two
previous referenda, therein giving reality to an interregnum
between the effectivity of the Constitution and the initial
convocation of the interim National Assembly, which
interregnum, as aforesaid, constitutes the first stage in the
transition period.
Against this factual backdrop, it is readily discernible that neither
of the two sets of provisions embodied in the Constitution on the
amendatory process applied during the said first stage. Thus,
Section 15, Article XVII (Transitory Provisions) provides-
"Sec. 15. The interim National Assembly, upon special call by the
interim Prime Minister, may, by a majority vote of all its Members,
propose amendments to this Constitution. Such amendments
shall take effect when ratified in accordance with Article Sixteen
hereof."
Patently, the reference to the "interim National Assembly" and
the "interim Prime Minister" limits the application thereof to the
second stage of the transition period, i.e.,., after the interim?
National Assembly shall have been convened and the interim
Prime Minister shall have been chosen.
Upon the other hand, the provisions of Article XVI (Amendments),
to wit-
SECTION 1. (1) Any amendment to, or revision
of, this Constitution may be proposed by the
National Assembly upon a vote of three-fourths
of all its Members, or by a constitutional
convention.
(2) The National Assembly may, by a vote of
two-thirds of all its Members, call a
constitutional convention or, by a majority vote
of all its Members, submit the question of
ceiling such a convention to the electorate in an
election.
SEC. 2. Any amendment to, or revision of, this
Constitution shall be valid when ratified by a
majority of the votes cast in a plebiscite which
shall be held not later than three months after
the approval of such amendment or revision.
unequivocally contemplate amendments after the regular
Government shall have become fully operative, referring as they
do to the National Assembly which will come into being only at
that time.
In the face of this constitutional hiatus, we are confronted with
the dilemma whether amendments to the Constitution may be
effected during the aforesaid first stage and, if in the affirmative,
by whom and in what manner such amendments may be
proposed and ratified.
Susceptibility to change is one of the hallmarks of an Ideal
Constitution. Not being a mere declaration of the traditions of a
nation but more the embodiment of a people's hopes and
aspirations, its strictures are not unalterable. They are, instead,
dynamic precepts intended to keep in stride with and attuned to
the living social organism they seek to fashion and govern. If it is
conceded that "the political or philosophical aphorism of one
generation is doubted by the next and entirely discarded by the
third," then a Constitution must be able to adjust to the changing
needs and demands of society so that the latter may survive,
progress and endure. On these verities, there can be no debate.
During the first stage of the transition period in which the
Government is at present - which is understandably the most
critical - the need for change may be most pressing and
imperative, and to disavow the existence of the right to amend
the Constitution would be sheer political heresy. Such view would
deny the people a mechanism for effecting peaceful change, and
belie the organic conception of the Constitution by depriving it of
its means of growth. Such a result obviously could not have been
intended by the framers of the fundamental law.
It seems, however, that the happenstance that the first period
would come to pass before the convocation of the interim
National Assembly was not anticipated, hence, the omission of an
express mandate to govern the said situation in so far as
amendments are concerned. But such omission through
inadvertence should not, because it cannot, negate the sovereign
power of the people to amend the fundamental charter that
governs their lives and their future and perhaps even the very
survival of the nation.
Upon the other hand, it is clear from the afore-quoted provisions
on the amendatory process that the intent was, instead, to
provide a simpler and more expeditious mode of amending the
Constitution during the transition period. For, while under Article
XVI thereof, proposals for amendment may be made directly by
the regular National Assembly by a vote of at least three-fourths
of all its members, under Section 15 of Article XVII, a bare majority
vote of all the members of the National Assembly would suffice
for the purpose. The relaxation and the disparity in the vote
requirement are revealing. The can only signify a recognition of
the need to facilitate the adoption of amendments during the
second stage of the transition period so that the interim National
Assembly will be able, in a manner of speaking, to iron out the
kinks in the new Constitution, remove imperfections therein, and
provide for changed or changing circumstances before the
establishment of the regular Government. In this contest,
therefore, it is inutile speculation to assume that the Constitution
was intended to render impotent or ar the effectuation of needful
change at an even more critical period - the first stage. With
greater reason, therefore, must the right and power to amend the
Constitution during the first stage of te transition period be
upheld, albeit within its express and implied constraints.
Neither can it be successfully argued, in the same context and in
the present posture, that the Constitution may be amended
during the said first stage only by convening the interim National
Assembly. That is to say and require that he said stage must first
be brought to an end before any amendment may be proposed
and ratified. Settled jurisprudence does not square with such a
proposition. As aptly noted in Aquino vs. Commission on
Elections, et al., supra, the framers of the Constitution set no
deadline for the convening of the interim National Assembly
because they could not have foreseen how long the crises which
impelled the proclamation and justify the continued state of
martial law would last. Indeed, the framers committed to the
sound judgment is not subject to judicial review, save possibly to
determine whether arbitrariness has infected such exercise;
absent such a taint, the matter is solely in the keeping of the
President. To thus content that only by convening the interim
National Assembly may the Constitution be amended at this time
would effectively override the judgement vested in the President,
even in default of any he has acted arbitrarily or gravely abuse his
discretion. Furthermore, to sustain such a contention would not
only negate the mandate so resoundingly expressed by the
people in two national referenda against the immediate
convening of the interim National Assembly, but as well deride
their overwhelming approval of the manner in which the
President has exercised the legislative power to issue
proclamations, orders, decrees and instructions having the
stature and force of law.
Given the constitutional stalemate or impasse spawned by these
supervening developments, the logical query that compels itself
for resolution is: By whom, then, may proposals for the
amendment of the Constitution be made and in what manner
may said proposals be ratified by the people?
It is conventional wisdom that, conceptually, the constituent
power is not to be confuse with legislative power in general
because the prerogative to propose amendments to the
Constitution is not in any sense embraced within the ambit of
ordinary law-making. Hence, there is much to recommend the
proposition that, in default of an express grant thereof, the
legislature - traditionally the delegated repository thereof - may
not claim it under a general grant of legislative authority. In the
same vein, neither would it be altogether unassailable to say that
because by constitutional tradition and express allocation the
constituent power under the Constitution is locate in the law-
making agency and at this stage of the transition period the law-
making authority is firmly recognized as being lodged in the
President, the said constituent power should now logically be in
the hands of te President who may thus exercise it in place of the
interim National Assembly. Instead,, as pointed out in Gonzales
vs. Commission on Elections, et al., supra, the power to amend
the Constitution or to propose amendments thereto
... is part of the inherent powers of the people -
as the repository of sovereignty in a republican
state, such as ours - t o make, and, hence, to
amend their own Fundamental Law.
As such, it is undoubtedly a power that only the sovereign people,
either directly by themselves or through their chosen delegate,
can wield. Since it has been shown that the people, inadvertently
or otherwise, have not delegated that power to inadvertently or
otherwise, have not delegated that power to any instrumentality
during the current stage of our hegira from crisis to normalcy, it
follows of necessity that the same remains with them for them to
exercise in the manner they see fit and through the agency they
choose. And, even if it were conceded that - as it is reputedly the
rule in some jurisdictions - a delegation of the constituent
authority amounts to a complete divestiture from the people of
the power delegated which they may not thereafter unilaterally
reclaim from the delegate, there would be no violence donde to
such rule, assuming it to be applicable here, inasmuch as that
power, under the environmental circumstance adverted to, has
not been delegated to anyone in the first place. The constituent
power during the first stage of the transition period belongs to
and remains with the people, and accordingly may be exercised
by them - how and when - at their pleasure.
At this juncture, a flashback to the recent and contemporary
political ferment in the country proves revelatory. The people,
shocked and revolted by the "obvious immorality" of the
unabashed manner by which the delegates to the Constitutional
Convention virtually legislated themselves into office as ipso facto
members of the interim National Assembly by the mere fiat of
voting for the transitory provisions of the Constitution. and the
stark reality that the unwieldy political monstrosity that the
interim Assembly portended to be would have proven to be a
veritable drain on the meager financial resources of a nation
struggling for survival, have unequivocally put their foot down, as
it were, on the convocation thereof. But this patently salutary
decision of the people proved to be double-edged. It likewise
bound the political machinery of the Government in a virtual
straight-jacket and consigned the political evolution of the nation
into a state of suspended animation. Faced with the ensuing
dilemma, the people understandably agitated for a solution.
Through consultations in the barangays and sanggunian
assemblies, the instrumentalities through which the people's
voice is articulated in the unique system of participatory
democracy in the country today, the underpinnings for the
hastening of the return to constitutional normalcy quickly evolved
into an overwhelming sentiment to amend the Constitution in
order to replace the discredited interim National Assembly with
what the people believe will be an appropriate agency to
eventually take over the law-making power and thus pave the way
for the early lifting of martial rule. In pursuit of this sentiment, and
to translate its constraints into concrete action, the Pambansang
Katipunan ng Barangay, the Pambansang Katipunan ng mga
Kabataang Barangay, the Lupong Tagapagpaganap of the
Katipunan ng mga Barangay, the Pambansang Katipunan ng mga
Kabataang Barangay the Lupong Tagapagpaganap of the
Katipunan ng mga Sanggunian, and finally the Batasang Bayan, to
a man and as one voice, have come forward with definitive
proposals for the amendment of the Constitution, and, choosing
the President the only political arm of the State at this time
through which that decision could be implemented and the end
in view attained as their spokesman, proposed the amendments
under challenge in the cases at bar.
In the light of this milieu and its imperatives, one thing is
inescapable: the proposals now submitted to the people for their
ratification in the forthcoming referendum-plebiscite are factually
not of the President; they are directly those of the people
themselves speaking thru their authorized instrumentalities. The
President merely formalized the said proposals in Presidential
Decree No. 1033. It being conceded in all quarters that
sovereignty resides in the people and it having been
demonstrated that their constituent power to amend the
Constitution has not been delegated by them to any
instrumentality of the Government during the present stage of
the transition period of our political development, the conclusion
is ineluctable that their exertion of that residuary power cannot
be vulnerable to any constitutional challenge as being ultra vires.
Accordingly, without venturing to rule on whether or not the
President is vested with constituent power as it does not appear
necessary to do so in the premises the proposals here challenged,
being acts of the sovereign people no less, cannot be said to be
afflicted with unconstitutionality. A fortiori, the concomitant
authority to call a plebiscite and to appropriate funds therefor is
even less vulnerable not only because the President, in exercising
said authority has acted as a mere alter ego of the people who
made the proposals, but likewise because the said authority is
legislative in nature rather than constituent.
III
Third Issue
Little need be said of the claimed insufficiency and impropriety of
the submission of the proposed amendments for ratification from
the standpoint of time. The thesis cannot be disputed that a fair
submission presupposes an adequate time lapse to enable the
people to be sufficiently enlightened on the merits or demerits of
the amendments presented for their ratification or rejection.
However, circumstances there are which unmistakably
demonstrated that the is met. Even if the proposal appear to have
been formalized only upon the promulgation of Presidential
Decree No. 1033 on September 22, 1976, they are actually the
crystallization of sentiments that for so long have preoccupied the
minds of the people and their authorized representatives, from
the very lowest level of the political hierarchy. Hence, unlike
proposals emanating from a legislative body, the same cannot but
be said to have been mulled over, pondered upon, debated,
discussed and sufficiently understood by the great masses of the
nation long before they ripened into formal proposals.
Besides. it is a fact of which judicial notice may well be taken that
in the not so distant past when the 1973 Constitution was
submitted to the people for ratification, an all-out campaign, in
which all the delegates of the Constitutional Convention
reportedly participated, was launched to acquaint the people
with the ramifications and working of the new system of
government sought to be inaugurated thereunder. It may thus
well be assumed that the people in general have since acquired,
in the least, a working knowledge of the entirety of the
Constitution. The changes now proposed the most substantial of
which being merely the replacement of the interim National
assembly with another legislative arm for the Government during
the transition period until the regular National Assembly shall
have been constituted do not appear to be of such complexity as
to require considerable time to be brought home to the full
understanding of the people. And, in fact, the massive and wide-
ranging informational and educational campaign to this end has
been and still is in full swing, with all the media the barangay, the
civic and sectoral groups, and even the religious all over the land
in acting and often enthusiastic if not frenetic involvement.
Indeed, when the people cast their votes on October 16, a
negative vote could very well mean an understanding of the
proposals which they reject; while an affirmative vote could
equally be indicative Of such understanding and/or an abiding
credence in the fidelity with which the President has kept the
trust they have confided to him as President and administrator of
martial rule
IV
Conclusion
It is thus my considered view that no question viable for this court
to pass judgment upon is posed. Accordingly, I vote for the
outright dismissal of the three petitions at bar.
FERNANDO, J., concurring and dissenting:
These three petitions, the latest in a series of cases starting from
Planas v. Commission on Elections continuing with the epochal
resolution in Javellana v. Executive Secretary and followed
successively in three crucial decisions, Aquino v. Ponce Enrile
Aquino v. Commission on Elections, and Aquino v Military
Commission,5 manifest to the same degree the delicate and
awesome character of the function of judicial review. While
previous rulings supply guidance and enlightenment, care is to be
taken to avoid doctrinaire rigidity unmindful of altered
circumstances and the urgencies of the times. It is inappropriate
to resolve the complex problems of a critical period without full
awareness of the consequences that flow from whatever decision
is reached. Jural norms must be read in the context of social facts,
There is need therefore of adjusting inherited principles to new
needs. For law, much more so constitutional law, is
simultaneously a reflection of and a force in the society that it
controls. No quality then can be more desirable in constitutional
adjudication than that intellectual and imaginative insight which
goes into the heart of the matter. The judiciary must survey things
as they are in the light of what they must become It must inquire
into the specific problem posed not only in terms of the teaching
of the past but also of the emerging political and legal theory,
especially so under a leadership notable for its innovative
approach to social problems and the vigor of its implementation.
This, on the one side. It must equally be borne in mind through
that this Court must be conscious of the risk inherent in its being
considered as a mere subservient instrument of government
policy however admittedly salutary or desirable. There is still the
need to demonstrate that the conclusion reached by it in cases
appropriate for its determination has support in the law that must
be applied. To my mind that was the norm followed, the
conclusion reached being that the three petitions be dismissed. I
am in agreement. It is with regret however that based on my
reading of past decisions, both Philippine and American, and
more specifically my concurring opinion in Aquino v. Ponce Enrile,
I must dissent from the proposition set forth in the able and
scholarly opinion of Justice Martin that there is concentration of
power in the President during a crisis government. Consequently,
I cannot see my way clear to accepting the view that the authority
to propose amendments is not open to question. At the very least,
serious doubts could be entertained on the matter.
1. With due respect then, I have to dissociate myself from my
brethren who would rule that governmental powers in a crisis
government, following Rossiter, "are more or less concentrated in
the President." Adherence to my concurring and dissenting
opinion in Aquino v. Ponce Enrile leaves me no choice.
It must be stated at the outset that with the sufficiency of
doctrines supplied by our past decisions to point the way to what
I did consider the appropriate response to the basic issue raised
in the Aquino and the other habeas corpus petitions resolved
jointly, it was only in the latter portion of my opinion that
reference was made to United States Supreme Court
pronouncements on martial law, at the most persuasive in
character and rather few in number "due no doubt to the,
absence in the American Constitution of any provision concerning
it." 7 It was understandable then that it was only after the
landmark Ex parte Milligan case, that commentators like Cooley
in 1868 and Watson in 1910 paid attention, minimal by that, to
the subject." It was next set forth that in the works on American
constitutional law published in this century specially after the
leading cases of cases Sterling v. Constant in and Duncan v.
Kahanamoku, "there was a fuller treatment of the question of
martial law While it is the formulation of Willoughby that for me
is most acceptable, my opinion did take note that another
commentator, Burdick, came out earlier with a similar
appraisal.10 Thus: "So called martial law, except in occupied
territory of an enemy is merely the calling in of the aid of military
forces by the executive, who is charged with the enforcement of
the law, with or without special authorization by the legislature.
Such declaration of martial law does not suspend the civil law,
though it may interfere with the exercise of one's ordinary rights.
The right to call out the military forces to maintain order and
enforce the law is simply part of the Police power, It is only
justified when it reasonably appears necessary, and only justifies
such acts as reasonably appear necessarily to meet the exigency,
including the arrest, or in extreme cases the. killing of those who
create the disorder or oppose the authorities. When the exigency
is over the members of the military forces are criminally and civilly
habit for acts done beyond the scope of reasonable necessity.
When honestly and reasonably coping with a situation of
insurrection or riot a member of the military forces cannot be
made liable for his acts, and persons reasonably arrested under
such circumstances will not, during the insurrection or riot, be
free by writ of habeas corpus." 11 When the opinion cited
Willoughby's concept of martial law, stress was laid on his being
"Partial to the claims of liberty."12 This is evident in the explicit
statement from his work quoted by me: "There is, then, strictly
speaking, no such thing in American law as a declaration of martial
law whereby military law is substituted for civil law. So-called
declarations of martial law are, indeed, often made but their legal
effect goes no further than to warn citizens that the military
powers have been called upon by the executive to assist him in
the maintenance of law and order, and that, while the emergency
lasts, they must, upon pain of arrest and punishment not commit
any acts which will in any way render more difficult the
restoration of order and the enforcement of law. Some of the
authorities stating substantially this doctrine are quoted in the
footnote below Nor did I stop there. The words of Willis were
likewise cited: "Martial law proper, that is, military law in case of
insurrection, riots, and invasions, is not a substitute for the civil
law, but is rather an aid to the execution of civil law. Declarations
of martial law go no further than to warn citizens that the
executive has called upon the military power to assist him in the
maintenance of law and order. While martial law is in force, no
new powers are given to the executive and no civil rights of the
individual, other than the writ of habeas corpus, are suspended.
The relations between the citizen and his stature unchanged."14
The conclusion reached by me as to the state of American federal
law on the question of martial law was expressed thus: 4'1 It is
readily evident that even when Milligan supplied the only
authoritative doctrine, Burdick and Willoughby did not ignore the
primacy of civil liberties. Willis wrote after Sterling. It would
indeed be surprising if his opinion were otherwise. After Duncan,
such an approach becomes even more strongly fortified.
Schwartz, whose treatise is the latest to be published, has this
summary of what he considers the present state of American law:
'The Milligan and Duncan cases show plainly that martial law is
the public law of necessity. Necessities alone calls it forth,
necessity justifies its exercise; and necessities measures the
extended degree to which it may be It is, the high Court has
affirmed, an unbending rule of law that the exercise of military
power, where the rights of the citizen are concerned, may, never
be pushed beyond what the exigency requires. If martial law rule
survive the necessities on which alone it rests, for even a single
minute it becomes a mere exercise of lawless violence.' Further:
Sterling v. Constantin is of basic importance. Before it, a number
of decisions, including one the highest Court, went or on the
theory that the executive had a free hand in taking martial law
measures. Under them, it has been widely supposed that in
proclamation was so far conclusive that any action taken under it
was immune from judicial scrutiny. Sterling v. Constantin
definitely discredits these earlier decisions and the doctrine of
conclusiveness derived from them. Under Sterling v. Constantin,
where martial law measures impinge upon personal or property
rights-normally beyond the scope of military power, whose
intervention is lawful only because an abnormal Actuation has
made it necessary the executive's ipse dixit is not of itself
conclusive of the necessity.'"15
There was likewise an effort on my part to show what for me is
the legal effect of martial law being expressly provided for in the
Constitution rather than being solely predicated on the common
law power based on the urgent need for it because of compelling
circumstances incident to the state of actual clash of arms: "It is
not to be lost sight of that the basis for the declaration of martial
law in the Philippines is not mere necessity but an explicit
constitutional provision. On the other hand, Milligan, which
furnished the foundation for Sterling and Duncan had its roots in
the English common law. There is pertinence therefore in
ascertaining its significance under that system. According to the
noted English author, Dicey: 'Martial law,' in the proper sense of
that term, , in which - it means the suspension of ordinary law and
the temporary government of a country or parts of it be military
tribunals, is unknown to the law of England. We have nothing
equivalent to what is called in France the "Declaration of the State
of Siege," under which the authority ordinarily vested in the civil
power for the maintenance of order and police passes entirely to
the army (autorite militaire). This is an unmistakable proof of the
permanent supremacy of the law under our constitution. There
was this qualification: 'Martial law is sometimes employed as a
name for the common law right of the Crown and its servants to
repel force by force in the case of invasion, insurrection, riot, or
generally of any violent resistance to the law. This right, or power,
is essential to the very existence of orderly government, and is
most assuredly recognized in the most ample manner by the law
of England. It is a power which has in itself no special connection
with the existence of an armed force. The Crown has the right to
put down breaches of the peace. Every subject, whether a civilian
or a soldier, whether what is called a servant of the government,'
such for example as a policeman, or a person in no way connected
with the administration, not only has the right, but is, as a matter
of legal duty, bound to assist in putting down breaches of the
peace. No doubt policemen or soldiers are the persons who, as
being specially employed in the maintenance of order, are most
generally called upon to suppress a riot, but it is clear that all loyal
subjects are bound to take their part in the suppression of riots."16
Commitment to such an approach results in my inability to
subscribe to the belief that martial law in terms of what is
provided both in the 1935 and the present Constitution, affords
sufficient justification for the concentration of powers in the
Executive during periods of crisis. The better view, considering the
juristic theory on which our fundamental law rests is that
expressed by Justice Black in Duncan v. Kahanamoku:
"Legislatures and courts are not merely cherished American
institutions; they are indispensable to our government. 17 If there
has been no observance of such a cardinal concept at the present,
it is due to the fact that before the former Congress could meet
in regular session anew, the present Constitution was adopted,
abolishing it and providing for an interim National Assembly,
which has not been convened.18 So I did view the matter.
2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion.
Reference was made to the first chapter on his work on
Constitutional Dictatorship where he spoke of martial rule as "a
device designed for use in the crisis of invasion or rebellion. It may
be most precisely defined as an extension of military government
to the civilian population, the substitution of the will of a military
commander for the will of the people's elected
government."19Since, for me at least, the Rossiter
characterization of martial law has in it more of the common law
connotation, less than duly mindful of the jural effects of its
inclusion in the Constitution itself as a legitimate device for coping
with emergency conditions in times of grave danger, but always
subject to attendant limitations in accordance with the
fundamental postulate of a charter's supremacy, I felt justified in
concluding: "Happily for the Philippines, the declaration of martial
law lends itself to the interpretation that the Burdick, Willoughby,
Willis, Schwartz formulations paying due regard to the primacy of
liberty possess relevance. lt cannot be said that the martial rule
concept of Rossiter, latitudinarian in scope, has been adopted,
even on the assumption that it can be reconciled with our
Constitution. What is undeniable is that President Marcos has
repeatedly maintained that Proclamation No. 1081 was precisely
based on the Constitution and that the validity of acts taken there
under could be passed upon by the Supreme court. For me that is
quite reassuring, persuaded as I am likewise that the week- of
Rossiter is opposed to the fundamental concept of our polity,
which puts a premium on freedom."20
3. Candor and accuracy compel the admission that such a
conclusion his to be qualified. For in the opinion of the Court in
the aforecited Aquino v. Commission on Elections, penned by
Justice Makasiar, the proposition was expressly affirmed "that as
Commander-in-Chief and enforcer or administrator of martial
law, the incumbent President of the Philippines can reclamations,
orders and decrees during the period Martial Law essential to the
security and preservation of the Republic, to the defense of the
political and social liberties of the people and to the institution of
reforms to prevent the resurgence of rebellion or insurrection or
secession or the threat thereof as well as to meet the impact of a
worldwide recession, inflation or economic crisis which presently
threatens all nations including highly developed countries." 21 To
that extent, Rossiter's view mainly relied upon, now possesses
Juristic significant in this jurisdiction. What, for me at least, gives
caused for concern is that with the opinion of the Court this
intrusion of what I would consider an alien element in the limited
concept of martial law as set forth in the Constitution would be
allowed further incursion into the corpus of the law, with the
invocation of the view expressed in the last chapter of his work
approving tile "concentration of governmental power in a
democracy [as] a corrective to the crisis inefficiencies inherent in
the doctrine of the separation of powers." 22 It is to the credit of
the late Professor Rossiter as an objective scholar that in the very
same last chapter, just three pages later, he touched explicitly on
the undesirable aspect of a constitutional dictatorship. Thus:
"Constitutional Dictatorship is a dangerous thing. A declaration of
martial law or the passage of an enabling act is a step which must
always be feared and sometimes bitterly resisted, for it is at once
an admission of the incapacity of democratic institutions to
defend the order within which they function and a too conscious
employment of powers and methods long ago outlawed as
destructive of constitutional government. Executive legislation,
state control of popular liberties, military courts, and arbitrary
executive action were governmental features attacked by the
men who fought for freedom not because they were inefficient or
unsuccessful, but because they were dangerous and oppressive.
The reinstitution of any of these features is a perilous matter, a
step to be taken only when the dangers to a free state will be
greater if the dictatorial institution is not adopted."23
4. It is by virtue of such considerations that I find myself unable to
share the view of those of my brethren who would accord
recognition to the Rossiter concept of concentration of
governmental power in the Executive during periods of crisis. This
is not to lose sight of the undeniable fact that in this country
through the zeal, vigor, and energy lavished on projects conducive
to the general welfare, considerable progress has been achieved
under martial rule. A fair summary may be found in a recent
address of the First Lady before the delegates to the 1976
international Monetary Fund-World Bank Joint Annual Meeting:
"The wonder is that so much has been done in so brief a time.
Since September 1972, when President Marcos established the
crisis government, peace and order have been restored in a
country once avoided as one of the most unsafe in the world. We
have liberated millions of Filipino farmers from the bondage of
tenancy, in the most vigorous and extensive implementation of
agrarian reform."24Further, she said: "A dynamic economy has
replaced a stagnant order, and its rewards are distributed among
the many, not hoarded by a few. Our foreign policy, once confined
by fear and suspicion to a narrow alley of self-imposed isolation,
now travels the broad expressways of friendship and constructive
interaction with the whole world, these in a new spirit of
confidence and self-reliance. And finally, forced to work out our
own salvation, the Filipino has re-discovered the well-springs of
his strength and resilience As Filipinos, we have found our true
Identity. And having broken our crisis of Identity, we are no longer
apologetic and afraid. "25 The very Idea of a crisis, however,
signifies a transitory, certainly not a permanent, state of things.
President Marcos accordingly has not been hesitant in giving
utterance to his conviction that full implementation of the
modified parliamentary system under the present Constitution
should not be further delayed. The full restoration of civilian rule
can thus be expected. That is more in accord with the imperatives
of a constitutional order. It should not go unnoticed either that
the President has referred to the present regime as one of
"constitutional authoritarianism." That has a less objectionable
ring, authority being more Identified with the Idea of law, as
based on right, the very antithesis of naked force, which to the
popular mind is associated with dictatorship, even if referred to
as "constitutional."
For me likewise, that equally eminent scholar Corwin, also
invoked in the opinion of the Court, while no doubt a partisan of
d strong Presidency, was not averse to constitutional restraints
even during periods of crisis. So I would interpret this excerpt
from the fourth edition of his classic treatise on the Presidency:
"A regime of martial law may be compendiously, if not altogether
accurately, defined as one in which the ordinary law, as
administered by the ordinary courts, is superseded for the time
being by the will of a military commander. It follows that, when
martial law is instituted under national authority, it rests
ultimately on the will of the President of the United States in his
capacity as Commander-in-Chief. It should be added at once,
nevertheless, that the subject is one in which the record of actual
practice fails often to support the niceties of theory. Thus, the
employment of the military arm in the enforcement of the civil
law does not invariably, or even usually, involve martial law in the
strict sense, for, as was noted in the preceding section, soldiers
are often placed simply at the disposal and direction of the civil
authorities as a kind of supplementary police, or posse comitatus
on the other hand be reason of the discretion that the civil
authorities themselves are apt to vest in the military in any
emergency requiring its assistance, the line between such an
employment of the military and a regime of martial law is
frequently any but a hard and fast one. And partly because of
these ambiguities the conception itself of martial law today
bifurcates into two conceptions, one of which shades off into
military government and the other into the situation just
described, in which the civil authority remains theoretically in
control although dependent on military aid. Finally, there is the
situation that obtained throughout the North during the Civil War,
when the privilege of the writ of habeas corpus was suspended as
to certain classes of suspects, although other characteristics of
martial law were generally absent."26
It is by virtue of the above considerations that, with due respect
to the opinion of my brethren, I cannot yield assent to the Rossiter
view of concentration of governmental powers in the Executive
during martial law.
5 There is necessity then, for me at least, that the specific
question raised in all three petitions be squarely faced. It is to the
credit of the opinion of the Court that it did so. The basic issue
posed concerns the boundaries of the power of the President
during this period of martial law, more precisely whether it covers
proposing amendments to the Constitution. There is the further
qualification if the stand of respondents be taken into account
that the interim National Assembly has not been convened and is
not likely to be called into session in deference to the wishes of
the people as expressed in three previous referenda. It is the
ruling of the majority that the answer be in the affirmative, such
authority being well within the area of presidential competence.
Again I find myself unable to join readily in that conviction. It does
seem to me that the metes and bounds of the executive domain,
while still recognizable, do appear blurred. This is not to assert
that there is absolutely no basis for such a conclusion, sustained
as it is by a liberal construction of the principle that underlies
Aquino v. Commission on Elections as to the validity of the
exercise of the legislative prerogative by the President as long as
the interim National Assembly is not For me, the stage of
certitude has not been reached. I cannot simply ignore the
vigorous plea of petitioners that there is a constitutional
deficiency consisting in the absence of any constituent power on
the part of the President, the express provision of the
Constitution conferring it on the by team National
Assembly.27 The learned advocacy reflected in the pleadings as
well as the oral discourse of Solicitor General Estelito P. Mendoza
21 failed to erase the grave doubts in my mind that the Aquino
doctrine as to the possession of legislative competence by the
President during this period of transition with the interim
lawmaking body not called into session be thus expanded. The
majority of my brethren took that step. I am not prepared to go
that far. I will explain why.
The way for me, is beset with obstacles. In the first place, such an
approach would lose sight of the distinction between matters
legislative and constituent. That is implicit in the treatise on the
1935 Constitution by Justices Malcolm and Laurel In their
casebook published the same year, one of the four decisions on
the subject of constitutional amendments is Ellingham v. Dye 31
which categorically distinguished between constituent and
legislative powers. Dean Sinco, a well-known authority on the
subject, was quite explicit. Thus: "If there had been no express
provision in the Constitution granting Congress the power to
propose amendments, it would be outside its authority to assume
that power. Congress may not claim it under the general grant of
legislative power for such grant does not carry with it the right 'to
erect the state, institute the form of its government,' which is
considered a function inherent in the people. Congressional law-
making authority is limited to the power of approving the laws 'of
civil conduct relating to the details and particulars of the
government instituted,' the government established by the
people."12 If that distinction be preserved, then for me the
aforecited Aquino decision does not reach the heart of the
matter. Nor is this all. In the main opinion of Justice Makasiar as
well as that of the then Justice, now Chief Justice, Castro, support
for the ruling that the President cannot be deemed as devoid of
legislative power during this transition stage is supplied by
implications from explicit constitutional provisions. 13 That is not
the case with the power to propose amendments. It is solely the
interim National Assembly that is mentioned. That is the barrier
that for me is well-nigh insurmountable. If I limit myself to
entertaining doubts rather than registering a dissent on this point,
it is solely because of the consideration, possessed of weight and
significance, that there may be indeed in this far-from-quiescent
and static period a need for al. amendments. I do not feel
confident therefore that a negative vote on my part would be
warranted. What would justify the step taken by the President,
even if no complete acceptance be accorded to the view that he
was a mere conduit of the barangays on this matter, is that as
noted in both qualified concurrences by Justices Teehankee and
Munoz Palma in Aquino, as far as the legislative and appropriately
powers are concerned, is the necessity that unless such authority
be recognized, there may be paralyzation of governmental
activities, While not squarely applicable, such an approach has, to
my mind, a persuasive quality as far as the power to propose
amendments is concerned.
Thus I would confine myself to the expression of serious doubts
on the question rather than a dissent.
6. The constitutional issue posed as thus viewed leaves me free to
concur in the result that the petitions be dismissed. That is to
accord respect to the principle that judicial review goes no further
than to checking clear infractions of the fundamental law, except
in the field of human rights where a much greater vigilance is
required, That is to make of the Constitution a pathway to rather
than a barrier against a desirable objective. -As shown by my
concurring and dissenting opinion in Tolentino Commission on
Elections '34 a pre-martial law decision, the fundamental
postulate that sovereignty resides in the people exerts a
compelling force requiring the judiciary to refrain as much as
possible from denying the people the opportunity to make known
their wishes on matters of the utmost import for the life of the
nation, Constitutional amendments fall in that category. I am
fortified in that conviction by the teaching of persuasive American
decisions There is reinforcement to such a conclusion from retired
Chief Justice Concepcion's concurring and dissenting opinion in
Aytona v. Castillo,17 Which I consider applicable to the present
situation. These are his words: "It is well settled that the granting
of writs of prohibition and mandamus is ordinarily within the
sound discretion of the courts, to be exercised on equitable
principles, and that said writs should be issued when the right to
the relief is clear * * by As he noted in his ponencia in the later
case of Gonzales v. Hechanova,19 an action for prohibition, while
petitioner was sustained in his stand, no injunction was issued.
This was evident in the dispositive portion where judgment was
rendered "declaring that respondent Executive Secretary had and
has no power to authorize the importation in question; that he
exceeded his jurisdiction in granting said authority; that said
importation is not sanctioned by law and is contrary to its
provisions; and that, for lack of the requisite majority, the
injunction prayed for must be and is, accordingly, denied." 40 With
the illumination thus supplied, it does not necessarily follow that
even a dissent on my part would necessarily compel that I vote
for the relief prayed for. Certainly this is not to belittle in any way
the action taken by petitioners in filing these suits. That, for me,
is commendable. It attests to their belief in the rule of law. Even
if their contention as to lack of presidential power be accepted in
their entirety, however, there is still discretion that may be
exercised on the matter, prohibition being an equitable remedy.
There are, for me, potent considerations that argue against
acceding to the plea. With the prospect of the interim National
Assembly being convened being dim, if not non- existent, if only
because of the results in three previous referenda, there would
be no constitutional agency other than the Executive who could
propose amendments, which, as noted. may urgently press for
adoption. Of even greater weight, to my mind, is the
pronouncement by the President that the plebiscite is intended
not only to solve a constitutional anomaly with the country devoid
of a legislative body but also to provide. the machinery be which
the termination of martial law could be hastened. That is a
consummation devoutly to be wished. That does militate strongly
against the stand of petitioners. The obstruction they would pose
may be fraught with pernicious consequences. It may not be
amiss to refer anew to what I deem the cardinal character of the
jural postulate explicitly affirmed in both the 1935 and the
present Constitutions that sovereignty resides in the people. So I
made clear in Tolentino v. Commission on Elections and
thereafter in my dissent in Javellana v. The Executive Secretary"
and my concurrence in Aquino v. Commission on Elections. 42 The
destiny of the country lies in their keeping. The role of leadership
is not to be minimized. It is crucial it is of the essence.
Nonetheless, it is their will, if given expression in a manner
sanctioned by law and with due care that there be no mistake in
its appraisal, that should be controlling. There is all the more
reason then to encourage their participation in the power
process. That is to make the regime truly democratic.
Constitutional orthodoxy requires, however, that the
fundamental law be followed. So I would interpret
Laski, 43 Corwin, 44 Lerner,45, Bryn-Jones, 46 and McIver.47
7. There is reassurance in the thought that this Court has affirmed
its commitment to the principle that the amending process gives
rise to a justiciable rather than a political question. So, it has been
since the leading case of Gonzales v. Commission on Election
S.48 It has since then been followed in Tolentino v. Commission on
Elections 49 Planas v. Commission on Elections," and lastly, in
Javellana v. The Executive Secretary This Court did not heed the
vigorous plea of the Solicitor General to resurrect the political
question doctrine announced in Mabanag v. Lopez Vito. 52 This is
not to deny that the federal rule in the United States as set forth
in the leading case of Coleman v. Miller , 53 a 1939 decision, and
relatively recent State court decisions, supply ammunition to such
a contention.,51 That may be the case in the United States, but
certainly not in this jurisdiction. Philippine constitutional tradition
is to the contrary. It can trace its origin to these words in the
valedictory address before the 1934-35 Constitutional
Convention by the illustrious Claro M. Recto: "It is one of the
paradoxes a democracy that the people of times place more
confidence in instrumentalities of the State other than those
directly chosen by them for the exercise of their sovereignty It can
be said with truth, therefore, that there has invariably been a
judicial predisposition to activism rather than self-restraint. The
thinking all these years has been that it goes to the heart of
constitutionalism. It may be said that this Court has shunned the
role of a mere interpreter; it did exercise at times creative power.
It has to that extent participated in the molding of policy, It has
always recognized that in the large and undefined field of
constitutional law, adjudication partakes of the quality of
statecraft. The assumption has been that just because it cannot
by itself guarantee the formation, much less the perpetuation of
democratic values or, realistically, it cannot prevail against the
pressure of political forces if they are bent in other directions. it
does not follow that it should not contribute its thinking to the
extent that it can. It has been asked, it will continue to be asked,
to decide momentous questions at each critical stage of this
nation's life.
There must be, however, this caveat. Judicial activism gives rise to
difficulties in an era of transformation and change. A society in
flux calls for dynamism in "he law, which must be responsive to
the social forces at work. It cannot remain static. It must be
sensitive to life. This Court then must avoid the rigidity of legal
Ideas. It must resist the temptation of allowing in the wasteland
of meaningless abstractions. It must face stubborn reality. It has
to have a feel for the complexities of the times. This is not to
discount the risk that it may be swept too far and too fast in the
surge of novel concepts. The past too is entitled to a hearing; it
cannot just be summarily ignored. History still has its uses. It is not
for this Court to renounce the virtue of systematic jural
consistency. It cannot simply yield to the sovereign sway of the
accomplished fact. It must be deaf to the dissonant dialectic of
what appears to be a splintered society. It should strive to be a
factor for unity under a rule of law. There must be, on its part,
awareness of the truth that a new juridical age born before its
appointed time may be the cause of unprecedented travail that
may not end at birth. It is by virtue of such considerations that I
did strive for a confluence of principle and practicality. I must
confess that I did approach the matter with some misgivings and
certainly without any illusion of omniscience. I am comforted by
the thought that immortality does not inhere in judicial opinions.
8. 1 am thus led by my studies on the subject of constitutional law
and, much more so, by previous judicial opinions to concur in the
dismissal of the petitions. If I gave expression to byes not
currently fashionable, it is solely due to deeply-ingrained beliefs.
Certainly, I am the first to recognize the worth of' the social and
economic reforms so needed by the troubled present that have
been introduced and implemented. There is no thought then of
minimizing, much less of refusing to concede, the considerable
progress that has been made and the benefits that have been
achieved under this Administration. Again, to reiterate one of my
cherished convictions, I certainly approve of the adherence to the
fundamental principle of popular sovereignty which, to be
meaningful however, requires both freedom in its manifestation
and accuracy in ascertaining what it wills. Then, too, it is fitting
and proper that a distinction was made between two aspects of
the coming poll, the referendum and the plebiscite. It is only the
latter that is impressed with authoritative force. So the
Constitution requires. Lastly, there should be, as I did mention in
my concurrence in Aquino v. Commission on Elections,56 full
respect for free speech and press, free assembly and free
association. There should be no thought of branding the
opposition as the enemy and the expression of its views as
anathema, Dissent, it is fortunate to note, has been encouraged.
It has not been Identified with disloyalty. That ought to be the
case, and not solely due to presidential decrees. Constructive
criticism is to be welcomed not so much because of the right to
be heard but because there may be something worth hearing.
That is to ensure a true ferment of Ideas, an interplay of
knowledgeable minds. There are though well- defined limits, One
may not advocate disorder in the name of protest, much less
preach rebellion under the cloak of dissent.. What I mean to stress
is that except on a showing of clear and present danger, there
must be respect for the traditional liberties that make a society
truly free.
TEEHANKEE, J., dissenting:
1. On the merits: I dissent from the majority's dismissal of the
petitions for lack of merit and vote to grant the petitions for the
following reasons and considerations: 1. It is undisputed that
neither the 1935 Constitution nor the 1973 Constitution grants to
the incumbent President the constituent power to propose and
approve amendments to the Constitution to be submitted to the
people for ratification in a plebiscite. The 1935 Constitution
expressly vests the constituent power in Congress, be a three-
fourths vote of all its members, to propose amendments or call a
constitutional convention for the purpose The 1973 Constitution
expressly vests the constituent power in the regular National
Assembly to propose amendments (by a three-fourths vote of all
its members) or "call a constitutional convention" (by a two-thirds
vote of all its members) or "submit the question of calling such
convention to the electorate in an election" (by a majority vote of
all its members ) .2
The transitory provisions of the 1973 Constitution expressing vest
the constituent power during the period of transition in the
interim National Assembly "upon special call be the Prime
Minister (the incumbent President 3)... by a majority ore of all its
members (to) propose amendments."
Since the Constitution provides for the organization of the
essential departments of government, defines and delimits the
powers of each and prescribes the manner of the exercise of such
powers, and the constituent power has not been granted to but
has been withheld from the President or Prime Minister, it follows
that the President's questioned decrease proposing and
submitting constitutional amendments directly to the people
(without the intervention of the interim National Assembly in
whom the power is expressly vested) are devoid of constitutional
and legal basis.
2. The doctrine in the leading case of Tolentino vs. Comelec is
controlling in the case at bar In therein declaring null and void the
acts of the 1971 Constitutional Convention and of the Comelec in
calling a plebiscite with the general elections scheduled for
November 8, 1971 for the purpose of submitting for the people's
ratification an advance amendment reducing the voting age from
21 years to 18 years, and issuing writs of prohibition and
injunction against the holding of the plebiscite, this Court
speaking through Mr. Justice Barredo ruled that --The
Constitutional provisions on amendments "dealing with the
procedure or manner of amending the fundamental law are
binding upon the Convention and the other departments of the
government, (land) are no less binding upon the people
As long as an amendment is formulated and
submitted under the aegis of the present
Charter, any proposal for such amendment
which is not in conformity with the letter, spirit
and intent of the Charter for effecting
amendments, cannot receive the sanction of
this Court ;8
The real issue here cannot be whether or not the amending
process delineated by the present Constitution may be
disregarded in favor of allowing the sovereign people to express
their decision on the proposed amendments, if only because it is
evident that the very Idea of departing from the fundamental law
is anachronistic in the realm of constitutionalism and repugnant
to the essence of the rule of law,"; 9 and
-Accordingly barred the plebiscite as improper and premature,
since "the provisional nature of the proposed amendments and
the manner of its submission to the people for ratification or
rejection" did not "conform with the mandate of the people
themselves in such regard, as expressed in the Constitution itself',
10 i.e. the mandatory requirements of the amending process as
set forth in the Article on Amendments.
3. Applying the above rulings of Tolentino to the case at bar,
mutatis, mutandis, it is clear that where the proposed
amendments are violative of the Constitutional mandate on the
amending process not merely for being a "partial amendment" of
a "temporary or provisional character" (as in Tolentino) but more
so for not being proposed and approved by the department
vested by the Constitution with the constituent power to do so,
and hence transgressing the substantive provision that it is only
the interim National Assembly, upon special call of the interim
Prime Minister, bu a majority vote of all its members that may
propose the amendments, the Court must declare the
amendments proposals null and void.
4. This is so because the Constitution is a "superior paramount
law, unchangeable by ordinary means" 11 but only by the
particular mode and manner prescribed therein by the people. As
stressed by Cooley, "by the Constitution which they establish, (the
people) not only tie up the hands of their official agencies but
their own hands as well; and neither the officers of the State, nor
the whole people as an aggregate body, are at liberty to take
action in opposition to this fundamental law." 12
The vesting of the constituent power to propose amendments in
the legislative body (the regular National Assembly) or the interim
National Assembly during the transition period) or in a
constitutional convention called for the purpose is in accordance
with universal practice. "From the very necessity of the case"
Cooley points out "amendments to an existing constitution, or
entire revisions of it, must be prepared and matured by some
body of representatives chosen for the purpose. It is obviously
impossible for the whole people to meet, prepare, and discuss the
proposed alterations, and there seems to be no feasible mode by
which an expression of their will can be obtained, except by asking
it upon the single point of assent or disapproval." This body of
representatives vested with the constituent - power "submits the
result of their deliberations" and "puts in proper form the
questions of amendment upon which the people are to pass"-for
ratification or rejection.13
5. The Court in Tolentino thus rejected the argument "that the
end sought to be achieved is to be desired" and in denying
reconsideration in paraphrase of the late Claro M. Recto declared
that "let those who would put aside, invoking grounds at best
controversial, any mandate of the fundamental purportedly in
order to attain some laudable objective bear in mind that
someday somehow others with purportedly more laudable
objectives may take advantage of the precedent and continue the
destruction of the Constitution, making those who laid down the
precedent of justifying deviations from the requirements of the
Constitution the victims of their own folly."
This same apprehension was echoed by now retired Justice
Calixto O. Zaldivar in his dissenting opinion in the Ratification
cases 14 that "we will be opening the gates for a similar disregard
to the Constitution in the future. What I mean is that if this Court
now declares that a new Constitution is now in force because the
members of the citizens assemblies had approved said new
Constitution, although that approval was not in accordance with
the procedure and the requirements prescribed in the 1935
Constitution, it can happen again in some future time that some
amendments to the Constitution may be adopted, even in a
manner contrary to the existing Constitution and the law, and
then said proposed amendments is submitted to the people in
any manner and what will matter is that a basis is claimed that
there was approval by the people. There will not be stability in our
constitutional system, and necessarily no stability in our
government."
6. It is not legally tenable for the majority, without overruling the
controlling precedent of Tolentino (and without mustering the
required majority vote to so overrule) to accept the proposed;
amendments as valid notwithstanding their being "not in
conformity with the letter, spirit and intent of the provision of the
Charter for effecting amendments" on the reasoning that "If the
President has been legitimately discharging the legislative
functions of the interim National Assembly, there is no reason
why he cannot validly discharge the functions."15
In the earlier leading case of Gonzales vs. Comelec16, this Court
speaking through now retired Chief Justice Roberto Concepcion,
pointer out that "Indeed, the power to Congress"17 or to the
National Assembly.18 Where it not for the express grant in the
Transitory Provisions of the constituent power to the interim
National Assembly, the interim National Assembly could not claim
the power under the general grant of legislative power during the
transition period.
The majority's ruling in the Referendum cases 19 that the
Transitory Provision in section 3(2) recognized the existence of
the authority to legislate in favor of the incumbent President
during the period of martial law manifestly cannot be stretched
to encompass the constituent power as expressly vested in the
interim National Assembly in derogation of the allotment of
powers defined in the Constitution.
Paraphrasing Cooley on the non-delegation of legislative power
as one of the settled maxims of constitutional law, 20the
contituent power has been lodged by the sovereign power of the
people with the interim National Assembly during the transition
period and there it must remain as the sole constitutional agency
until the Constitution itself is changed.
As was aptly stated by Justice Jose P. Laurel in the 1936 landmak
case of Angara vs. Electoral Commissioner21, "(T)he Constitution
sets forth in no uncertain language and restrictions and
limitations upon governmental powers and agencies. If these
restrictions and limitations are transcended it would be
inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers
sentiment, and the principles of good government mere political
apothegms. Certainly, the limitations and restrictions embodied
in our Constitution are real as they should be in any living
Constitution".
7. Neither is the justification of "constitutional impasses" tenable.
The sentiment of the people against the convening of the interim
National Assembly and to have no elections for "at least seven (7)
years" Concededly could not ament the Constitution insofar as
the interim National Assembly is concerned (since it admittendly
came into existence "immediately" upon the proclamation of
ratification of the 1973 Constitution), much less remove the
constituent power from said interim National Assembly.
As stressed in the writer's separate opinion in the Referendum
cases22, "(W)hile it has been advanced that the decision to defer
the initial convocation of the interim National Assembly was
supported by the results of the referendum in January, 1973 when
the people voted against the convening of the interim National
Assembly for at least seven years, such sentiment cannot be given
any legal force and effect in the light of the State's admission at
the hearing that such referendums are merely consultative and
cannot amend the Constitution or Provisions which call for the
'immediate existence' and 'initial convening of the interim
National Assembly to 'give priority to measures for the orderly
transition from the presidential to the parliamentary system' and
the other urgent measures enumerated in section 5 thereof".
While the people reportedly expressed their mandate against the
convening of the interim National Assembly to dischange its
legislative tasks during the period of transition under martial law,
they certainly had no opportunity and did not express themselves
against convening the interim National Assembly to discharge the
constituent power to propose amendments likewise vested in it
by the people's mandate in the Constitution.
In point of fact, when the holding of the October 16, 1976
referendum was first announced, the newspapers reported that
among the seven questions proposed by the sanggunian and
barangay national executive committies for the referendum was
the convening of the interim National Assembly.23
It was further reported that the proposals which were termed
tentative "will be discussed and studied by (the President), the
members of the cabinet, and the security council" and that the
barangays felt, notwithstanding the previous referenda on the
convening of the interim National Assembly that "it is time to
again ask the people's opinion of this matter " 24
8. If proposals for constitutional amendments are now deemed
necessary to be discussed and adopted for submittal to the
people, strict adherence with the mandatory requirements of the
amending process as provided in the Constitution must be
complied with. This means, under the teaching of Tolentino that
the proposed amendments must validly come from the
constitutional agency vested with the constituent power to do so,
namely, the interim National Assembly, and not from the
executive power as vested in the Prime Minister (the incumbent
President) with the assistance of the Cabinet 25 from whom such
power has been withheld.
It will not do to contend that these proposals represent the voice
of the people for as was aptly stated by Cooley "Me voice of the
people, acting in their sovereign capacity, can be of legal force
only when expressed at the times and under the conditions which
they themselves have prescribed and pointed out by the
Constitution. ... ."26
The same argument was put forward and rejected by this Court in
Tolentino which rejected the contention that the "Convention
being a legislative body of the highest order (and directly elected
by the people to speak their voice) is sovereign, in as such, its acts
impugned by petitioner are beyond the control of Congress and
the Courts" and ruled that the constitutional article on the
amending process" is nothing more than a part of the Constitution
thus ordained by the people. Hence, in continuing said section,
We must read it as if the people said, "The Constitution may be
amended, but it is our will that the amendment must be proposed
and submitted to Us for ratification only in the manner herein
provided'".27
This Court therein stressed that "This must be so, because it is
plain to Us that the framers of the Constitution took care that the
process of amending the same should not be undertaken with the
same ease and facility in changing an ordinary legislation.
Constitution making is the most valued power, second to none, of
the people in a constitutional democracy such as the one our
founding fathers have chosen for this nation, and which we of the
succeeding generations generally cherish. And because the
Constitution affects the lives, fortunes, future and every other
conceivable aspect of the lives of all the people within the country
and those subject to its sovereignity, ever constitution worthy of
the people for which it is intended must not be prepared in haste
without adequate deliberation and study. It is obvious that
correspondingly, any amendment of the Constitution is of no less
importance than the whole Constitution itself, and perforce must
be conceived and prepared with as much care and deliberation;"
and that "written constitutions are supposed to be designed so as
to last for some time, if not for ages, or for, at least, as long as
they can be adopted to the needs and exigencies of the people,
hence, they must be insulated against precipitate and hasty
actions motivated by more or less passing political moods or
fancies. Thus, as a rule, the original constitutions carry with them
limitations and conditions, more or less stringent, made so by the
people themselves, in regard to the process of their
amendment."28
9. The convening of the interim National Assembly to exercise the
constituent power to proposed amendments is the only way to
fulfill the express mandate of the Constitution.
As Mr. Justice Fernando emphasized for this Court in Mutuc vs.
Comelec 29 in the setting as in of a Comelec resolution banning the
use of political taped jingles by candidates for Constitutional
Convention delegates int he special 1970 elections, "the concept
of the Constitution as the fundamental law, setting forth the
criterion for the validity of any public act whether proceeding
from the highest official or the lowest functionary, is a postulate
of our system of government. That is to amnifst fealty to the rule
of law, with priority accorded to that which occupies the topmost
rung in the legal heirarchy. The three departments of government
in the discharge of the functions with which it is entrusted have
no choice but to yield obedience to its commands. Whatever
limits it imposes must be observed. Congress in the enactment of
statutes must ever be on guart lest the restrictions on its
authority, whether substantive or formal, be transcended. The
Presidency in the execution of the laws cannot ignore of disregard
what it ordains. In its task of applying the law to the facts as found
in deciding cases, the judiciary is called upon the maintain
inviolate what is decreed by the fundamental law."
This is but to give meaning to the plan and clear mandate of
section 15 of the Transitory Provisions (which allows of no other
interpretation) that during the stage of transition the interim
National Assembly alone exercises the constituent power to
propose amendments, upon special call therefor. This is
reinforced by the fact that the cited section does not grant to the
regular National Assembly of calling a constitutional convention,
thus expressing the will of the Convention (and presumably of the
people upon ratification) that if ever the need to propose
amendments arose during the limited period of transition, the
interim National Assembly alone would discharge the task and no
constitutional convention could be call for the purpose.
As to the alleged costs involved in convening the interim National
Assembly to propose amendments, among them its own
abolition, (P24 million annually in salaries alone for its 400
members at P600,000.00 per annum per member, assuming that
its deliberations could last for one year), suffice it to recall this
Court's pronouncement in Tolentino (in reflecting a similar
argument on the costs of holding a plebiscite separately from the
general elections for elective officials) that "it is a matter of public
knowledge that bigger amounts have been spent or thrown to
waste for many lesser objectives. ... Surely, the amount of
seventeen million pesos or even more is not too much a price to
pay for fealty and loyalty to the Constitution ... " 30 and that "while
the financial costs of a separate plebiscite may be high, it can
never be as much as the dangers involved in disregarding clear
mandate of the Constitution, no matter how laudable the
objective" and "no consideration of financial costs shall deter Us
from adherence to the requirements of the Constitution".11
10. The imposition of martial law (and "the problems of rebellion,
subversion, secession, recession, inflation and economic crisis a
crisis greater than war") 32 cited by the majority opinion as
justifying the concentration of powers in the President, and the
recognition now of his exercising the constituent power to
propose amendments to the Fundamental Law "as agent for and
in behalf of the people"33 has no constitutional basis.
In the post-war Emergency Powers 33*, former Chief Justice
Ricardo Paras reaffirmed for the Court the principle that
emergency in itself cannot and should not create power. In our
democracy the hope and survival of the nation lie in the wisdom
and unselfish patriotism of all officials and in their faithful
'Adherence to the Constitution".
The martial law clause of the 1973 Constitution found in Article
IX, section 12 , as stressed by the writer in his separate opinion in
the Referendum Cases,14 "is a verbatim reproduction of Article
VII, section 10 (2) of the 1935 Constitution and provides for the
imposition of martial law only 'in case of invasion, resurrection or
rebellion, or imminent danger thereof, when the public safety
requires it and hence the use of the legislative power or more
accurately 'military power' under martial rule is limited to such
necessary measures as will safeguard the Republic and suppress
the rebellion (or invasion)". 35
11. Article XVII, section 3 (2) of the 1973 Constitution which has
been held by the majority in the Referendum Cases to be the
recognition or warrant for the exercise of legislative power by the
President during the period of martial law is but a transitory
provision. Together with the martial law clause, they constitute
but two provisions which are not to be considered in isolation
from the Constitution but as mere integral parts thereof which
must be harmonized consistently with the entire Constitution.
As Cooley restated the rule: "effect is to be given, if possible, to
the whole instrument, and to every section and clause. If different
portions seem to conflict, the courts must harmonize them, if
practicable, and must lean in favor of a construction which will
render every word operative, rather than one which may make
some words Idle and nugatory.
This rule is applicable with special force to
written constitutions, in which the people will
be presumed to have expressed themselves in
careful and measured terms, corresponding
with the immense importance of the powers
delegated, leaving as little as possible to
implication. It is scarcelly conceivable that a
case can arise where a court would bye justified
in declaring any portion of a written
constitution nugatory because of ambiguity.
One part may qualify another so as to restrict its
operation, or apply it otherwise than the
natural construction would require if it stood by
itself; but one part is not to be allowed to defeat
another, if by any reasonable construction the
two can be made to stand together. 36
The transcendental constituent power to propose and approve
amendments to the Constitution as well as set up the machinery
and prescribe the procedure for the ratification of his proposals
has been withheld from the President (Prime Minister) as sole
repository of the Executive Power, presumably in view of the
immense powers already vested in him by the Constitution but
just as importantly, because by the very nature of the constituent
power, such amendments proposals have to be prepared,
deliberated and matured by a deliberative assembly of
representatives such as the interim National Assembly and hence
may not be antithetically entrusted to one man.
Former Chief Justice Roberto Concepcion had observed before
the elevation of the l971 Constitutional Convention that the
records of past plebiscites show that the constitutional agency
vested with the exercise of the constituent power (Congress or
the Constitutional Convention) really determined the
amendments to the Constitution since the proposals were
invariably ratified by the people 37 thus: "although the people
have the reserved power to ratify or reject the action taken by the
Convention, such power is not, in view of the circumstances
attending its exercise, as effective as one might otherwise think:
that, despite the requisite ratification by the people, the actual
contents of our fundamental law will really be determined by the
Convention; that, accordingly the people should exercise the
greatest possible degree of circumspection in the election of
delegates thereto ... "38
12. Martial law concededly does not abrogate the Constitution
nor obliterate its constitutional boundaries and allocation of
powers among the Executive, Legislative and Judicial
Departments. 39
It has thus been aptly observed that "Martial law is an emergency
regime, authorized by and subject to the Constitution. Its basic
premise is to preserve and to maintain the Republic against the
dangers that threaten it. Such premise imposes constraints and
limitations. For the martial law regime fulfills the constitutional
purpose only if, by reason of martial law measures, the Republic
is preserved. If by reason of such measures the Republic is so
transformed that it is changed in its nature and becomes a State
other than republican, then martial law is a failure; worse, martial
law would have become the enemy of the Republic rather than its
defender and preserver."40
II. On the question of the Court's jurisdiction to pass upon the
constitutionality of the questioned presidential decrees: let it be
underscored that the Court has long set at rest the question.
The trail was blazed for the Court since the benchmark case of
Angara vs. Electoral Commission when Justice Jose P. Laurel
echoed U.S. Chief Justice Marshall's "climactic phrase" that "we
must never forget that it is a Constitution we are expounding" and
declared the Court's "solemn and sacred" constitutional
obligation of judicial review and laid down the doctrine that the
Philippine Constitution as "a definition of the powers of
government" placed upon the judiciary the great burden of
"determining the nature, scope and extent of such powers" and
stressed that "when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over
the other departments . . . but only asserts the solemn and sacred
obliteration entrusted to it by the Constitution to determine
conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights which
the instrument secures and guarantees to them".
At the same time, the Court likewise adhered to the constitutional
tenet that political questions, i.e. questions which are intended by
the Constitutional and relevant laws to be conclusively
determined by the "political", i.e. branches of government
(namely, the Executive and the Legislative) are outside the Court's
jurisdiction. 41
Thus, in Gonzales,42 (by a unanimous Court) and in Tolentino43 (by
the required constitutional majority), the Court has since
consistently ruled that when proposing and approving
amendments to the Constitution, the members of Congress.
acting as a constituent assembly or the members of the
Constitutional Convention elected directly for the purpose by not
have the final say on whether or not their acts are within or
beyond constitutional limits. Otherwise, they could brush aside
and set the same at naught, contrary to the basic tenet that outs
is it government of lawsom not of men, and to the rigid nature of
our Constitution. Such rigidity is stressed by the fact that, the
Constitution expressly confers upon the Supreme Court, the
power to declare a treaty unconstitutional, despite the eminently
political character of treaty-making power".44
As amplified by former Chief Justice Concepcion in Javellana vs
Executive Secretary 45 (by a majority vote), "when the grant of
power is qualified, conditional or subject to limitations. the issue
on whether or not the prescribed qualifications or conditions
have been met, or the limitations by expected, is justiciable or
non-political, the crux of the problem being one of legality or
validity of the contested act, not its wisdom Otherwise, said
qualifications, conditions and limitations-particularly those
prescribed or imposed by the Constitution would be set at
naught".
The fact that the proposed amendments are to be submitted to
the people for ratification by no means makes the question
political and non- justiciable since as stressed even in Javellana
the issue of validity of the President's proclamation of ratification
of the Constitution presented a justiciable and non-political
question
Stated otherwise, the question of whether the Legislative acting
as a constituent assembly or the Constitutional Convention called
fol- the purpose, in proposing amendments to the people for
ratification followed the constitutional procedure and on the
amending process is perforce a justiciable question and does not
raise a political question of police or wisdom of the proposed
amendments, which if Submitted, are reserved for the people's
decision.
The substantive question presented in the case at bar of whether
the President may legally exercise the constituent power vested
in the interim National Assembly (which has not been granted to
his office) and propose constitutional amendments is
preeminently a justiciable issue.
Justice Laurel in Angara had duly enjoined that "in times of social
disquietude or political excitement, the great landmarks of the
Constitution are apt to be forgotten or marred, if not entirely
obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the
proper allocation of powers between the several departments
and among the integral or constituent units thereof".
To follow the easy way out by disclaiming jurisdiction over the
issue as a political question would be judicial abdication.
III. On the question of whether there is a sufficient and proper
submittal of the proposed amendments to the people:
Prescinding from the writer's view of the nullity of the questioned
decree of lack of authority on the President's part to excercise the
constituent power, I hold that the doctrine of fair and proper
submission first enunciated by a simple majority of by Justices in
Gonzales and subsequently officially adopted by the required
constitutional two-thirds majority of the Court in is controlling in
the case at bar.
1. There cannot be said to be fair and proper submission of the
proposed amendments. As ruled by this Court in Tolentino where
"the proposed amendment in question is expressly saddled with
reservations which naturally impair, in great measures, its very
essence as a proposed constitutional amendment" and where
"the way the proposal is worded, read together with the
reservations tacked to it by the Convention thru Section 3 of the
questioned resolution, it is too much of a speculation to assume
what exactly the amendment would really amount lo in the end.
All in all, as already pointed out in our discussion of movants' first
ground, if this kind of amendment is allowed, the Philippines will
appear before the world to be in the absurd position of being the
only country with a constitution containing a provision so
ephemeral no one knows until when it will bet actually in force",
there can be no proper submission.
In Tolentino a solitary amendment reducing the voting age to 18
years was struck down by this Court which ruled that "in order
that a plebiscite for the ratification of an amendment to the
Constitution may be validly held, it must provide the voter not
only sufficient time but ample basis for an intelligent appraisal of
the nature of the amendment per se as well as its relation to the
other parts of the Constitution with which it has to form a
harmonious whole," and that there was no proper Submission
wherein the people are in the dark as to frame of reference they
can base their judgment on
2. The now Chief Justice and Mr. Justice Makasiar with two other
members 46 graphically pointed out in their joint separate
opinion that the solitary question "would seem to be
uncomplicated and innocuous. But it is one of life's verities that
things which appear to be simple may turn out not to be so simple
after all".47
They further expressed "essential agreement" with Mr. Justice
Conrado V. Sanchez' separate opinion in Gonzales "on the
minimum requirements that must be met in order that there can
be a proper submission to the people of a proposed constitutional
amendment" which reads thus:
... we take the view that the words 'submitted
to the people for their ratification', if construed
in the light of the nature of the Constitution a
fundamental charter that is legislation direct
from the people, an expression of their
sovereign will - is that it can only be amended
by the people expressing themselves according
to the procedure ordained by the Constitution.
Therefore, amendments must be fairly laid
before the people for their blessing or spurning.
The people are not to be mere rubber stamps.
They are not to vote blindly. They must be
afforded ample opportunity to mull over the
original provisions, compare them with the
proposed amendments, and try to reach a
conclusion as the dictates of their conscience
suggest, free from the incubus of extraneous or
possibly insidious influences. We believe the
word submitted' can only mean that the
government, within its maximum capabilities,
should strain every effort to inform every
citizen of the provisions to be amended, and the
proposed amendments and the meaning,
nature and effects thereof. By this, we are not
to be understood as saying that, if one citizen or
100 citizens or 1,000 citizens cannot be
reached, then there is no submission within the
meaning of the word as intended by the framers
of the Constitution. What the Constitution in
effect directs is that the government, in
submitting an amendment for ratification,
should put every instrumentality or agency
within its structural framework to enlighten the
people, educate them with respect to their act
of ratification or rejection. For, as we have
earlier stated, one thing is submission and
another is ratification. There must be fair
submission, intelligent. consent or rejection. If
with all these safeguards the people still
approve the amendment no matter how
 prejudicial it is to them, then so be it. For the
people decree their own fate.48
Justice Sanchez therein ended the passage with an apt citation
that " ... " The great men who builded the structure of our state
in this respect had the mental vision of a good Constitution voiced
by Judge Cooley, who has said 'A good Constitution should be
beyond the reach of temporary excitement and. popular caprice
or passion. It is needed for stability and steadiness; it must yield
to the thought of the people; not to the whim of the people, or
the thought evolved in excitement or hot blood, but the sober
second thought, which alone, if the government is to be safe, can
be allowed efficiency. xxx xxx xxx Changes in government are to
be feared unless the benefit is certain. As Montaign says: All great
mutations shake and disorder state. Good does not necessarily
succeed evil ;another evil may succeed and a worse'." 49
Justice Sanchez thus stated the rule that has been adopted by the
Court in Tolentino that there is no proper submission "if the
people are not sufficiently affirmed of the amendments to be
voted upon, to conscientiously deliberate thereon, to express
their will in a genuine manner. ... .." 50
3. From the complex and complicated proposed amendments set
forth in the challenged decree and the plethora of confused and
confusing clarifications reported in the daily newspapers, it is
manifest that there is no proper submission of the proposed
amendments. Nine (9) proposed constitutional amendments
were officially proposed and made known as per Presidential
Decree No. 1033 dated, September 22, 1976 for submittal at the
"referendum-plebiscite" called for this coming Saturday, October
16, 1976 wherein the 15-year and under 18-year- olds are
enjoined to vote notwithstanding their lack of qualification under
Article VI of the Constitution. Former Senator Arturo Tolentino,
an acknowledged parliamentarian of the highest order, was
reported by the newspapers last October 3 to have observed that
"there is no urgency in approving the proposed amendments to
the Constitution and suggested that the question regarding
charter changes be modified instead of asking the people to vote
on hurriedly prepared amendments". He further pointed out that
"apart from lacking the parliamentary style in the body of the
Constitution, they do not indicate what particular provisions are
being repealed or amended".52
As of this writing, October 11, 1976, the paper today reported his
seven-page analysis questioning among others the proposed
granting of dual legislative powers to both the President and the
Batasang Pambansa and remarking that "This dual legislative
authority can give rise to confusion and serious constitutional
questions".53
Aside from the inadequacy of the limited time given for the
people's consideration of the proposed amendments, there can
be no proper submission because the proposed amendments are
not in proper form and violate the cardinal rule of amendments
of written constitutions that the specific provisions of the
Constitution being repealed or amended as well as how the
specific provisions as amended would read, should be clearly
stated in careful and measured terms. There can be no proper
submission because the vagueness and ambiguity of the
proposals do not sufficiently inform the people of the
amendments for, conscientious deliberation and intelligent
consent or rejection.
4. While the press and the Solicitor General at the hearing have
stated that the principal thrust of the proposals is to substitute
the interim National Assembly with an interim Batasang
Pambansa, a serious study thereof in detail would lead to the
conclusion that the whole context of the 1973 Constitution
proper would be affected and grave amendments and
modifications thereof -would apparently be made, among others,
as follows:
Under Amendment No. 1, the qualification age of members of the
interim Batasang Pambansa is reduced to 18 years;
Under Amendment No. 2, the treaty-concurring power of the
Legislature is withheld from the interim Batasang Pambansa;
Under Amendment No 3, not withstanding the convening of the
interim Batasang Pambansa within 30 days from the election and
selection of the members (for which there is no fixed date) the
incumbent President apparently becomes a regular President and
Prime Minister (not ad interim);
Under Amendment No. 4, the disqualifications imposed on
members of the Cabinet in the Constitution such as the
prohibition against the holding of more than one office in the
government including government-owned or -controlled
corporations would appear to be eliminated, if not prescribed by
the President;
Under Amendment No. 5, the President shall continue to exercise
legislative powers until martial law is lifted;
Under Amendment No. 6, there is a duality of legislative authority
given the President and the interim Batasang Pambansa as well as
the regular National Assembly, as pointed out by Senator
Tolentino, with the President continuing to exercise legislative
powers in case of "grave emergency or a threat or imminence
thereof" (without definition of terms) or when said Assemblies
"fail or are unable to act adequately on any matter for any reason
that in his judgment requires immediate action", thus radically
affecting provisions of the Constitution governing the said
departments;
Under Amendment No. 7, the barangays and Sanggunians would
apparently be constitutionalized, although their functions, power
and composition may be altered by law. Referendums (which are
not authorized in the present 1973 Constitution) would also be
constitutionalized, giving rise to the possibility fraught with grave
consequences, as acknowledged at the hearing, that
amendments to the Constitution may thereafter be effected by
referendum, rather than by the rigid and strict amending process
provided presently in Article XVI of the Constitution;
Under Amendment No. 8, there is a general statement in general
that the unspecified provisions of the Constitution "not
inconsistent with any of these amendments" shall continue in full
force and effect; and Under Amendment No. 9. the incumbent
President is authorized to proclaim the ratification of the
amendments by the majority of votes cast. It has likewise been
stressed by the officials concerned that the proposed
amendments come in a package and may not be voted upon
separately but on an "all or nothing" basis.
5. Whether the people can normally express their will in a genuine
manner and with due circumspection on the proposed
amendments amidst the constraints of martial law is yet another
question. That a period of free debate and discussion has to be
declared of itself shows the limitations on free debate and
discussion. The facilities for free debate and discussion over the
mass media, print and otherwise are wanting. The President
himself is reported to have observed the timidity of the media
under martial law and to have directed the press to air the views
of the opposition.54
Indeed, the voice of the studentry as reflected in the editorial of
the Philippine Collegian issue of September 23, 1976 comes as a
welcome and refreshing model of conscientious deliberation, as
our youth analyzes the issues "which will affect generations yet to
come" and urge the people to mull over the pros and cons very
carefully", as follows:
THE REFERENDUM ISSUES
On October 16, the people may be asked to
decide on two important national issues - the
creation of a new legislative body and the lifting
of martial law.
On the first issue, it is almost sure that the
interim National Assembly will not be
convened, primarily because of its membership.
Majority of the members of the defunct
Congress, who are mandated by the
Constitution to become members of the interim
National Assembly, have gained so widespread
a notoriety that the mere mention of Congress
conjures the image of a den of thieves who are
out to fool the people most of the time. Among
the three branches of government, it was the
most discredited. In fact, upon the declaration
of martial law, some people were heard to
mutter that a 'regime that has finally put an end
to such congressional shenanigans could not be
all that bad'.
A substitute legislative body is contemplated to
help the President in promulgating laws, and
perhaps minimize the issuance of ill-drafted
decrees which necessitate constant
amendments. But care should be taken that this
new legislative body would not become a mere
rubber stamp akin to those of other totalitarian
countries. It should be given real powers,
otherwise we will just have another nebulous
creation having the form but lacking the
substance. Already the President has expressed
the desire that among the powers he would like
to have with regard to the proposed legislative
body is that of abolishing it in case 'there is a
need to do so'. As to what would occasion such
a need, only the President himself can
determine. This would afford the Chief
Executive almost total power over the
legislature, for he could always offer the
members thereof a carrot and a stick.
On the matter of lifting martial law the people
have expressed ambivalent attitudes. Some of
them, remembering the turmoil that prevailed
before the declaration of martial law, have
expressed the fear that its lifting might
precipitate the revival of the abuses of the past,
and provide an occasion for evil elements to
resurface with their usual tricks. Others say that
it is about time martial law was lifted since the
peace and order situation has already stabilized
and the economy seems to have been parked
up.
The regime of martial law has been with us for
four years now. No doubt, martial law has
initially secured some reforms for the country
The people were quite willing to participate in
the new experiment, thrilled by the novelty of it
all. After the euphoria, however, the people
seem to have gone back to the old ways, with
the exception that some of our freedoms were
taken away, and an authoritarian regime
established.
We must bear in mind that martial law was
envisioned only to cope with an existing
national crisis, It was not meant to be availed of
for a long period of time, otherwise it would
undermine our adherence to a democratic form
of government. In the words of the
Constitution. martial law shall only be declared
in times of 'rebellion, insurrection,. invasion, or
imminent danger thereof, when the public
safety requires it'. Since we no longer suffer
from internal disturbances of a gargantuan
scale, it is about time we seriously rethink the
'necessity' of prolonging the martial law regime.
If we justify the continuance of martial by
economic or other reasons other than the
foregoing constitutional grounds, then our faith
in the Constitution might be questioned. Even
without martial law,. the incumbent Chief
Executive still holds vast powers under the
constitution. After all, the gains of the New
Society can be secured without sacrificing the
freedom of our people. If the converse is true,
then we might have to conclude that the
Filipinos deserve a dictatorial form of
government. The referendum results will show
whether the people themselves have adopted
this sad conclusion.
The response of the people to the foregoing
issues will affect generations yet to come, so
they should mull over the pros and cons very
carefully."
6. This opinion by written in the same spirit as the President's
exhortations on the first anniversary of proclamation of the 1973
Constitution that we "let the Constitution remain firm and stable"
so that it may "guide the people", and that we "remain steadfast
on the rule of law and the Constitution" as he recalled his
rejection of the "exercise (of) power that can be Identified merely
with a revolutionary government" that makes its own law, thus:
. . . Whoever he may be and whatever position
he may happen to have, whether in
government or outside government, it is
absolutely necessary now that we look
solemnly and perceptively into the Constitution
 and try to discover for ourselves what our role
is in the successful implementation of that
Constitution. With this thought, therefore, we
can agree on one thing and that is: Let all of us
age, let all of us then pass away as a pace in the
development of our country. but let the
Constitution remain firm and stable and let
institutions grow in strength from day to day,
from achievement to achievement, and so long
as that Constitution stands, whoever may the
man in power be, whatever may his purpose be,
that Constitution will guide the people and no
man, however, powerful he may be, will dare to
destroy and wreck the foundation of such a
Constitution.
These are the reasons why I personally, having
proclaimed martial law, having been often
induced to exercise power that can be
Identified merely with a revolutionary
government, have remained steadfast or the
rule of law and the Constitution. 54*
IV. A final word on the Court's resolution of October 5, 1976 which
in reply to the Comelec query allowed by a vote of 7 to 3, judges
of all courts, after office hours, "to accept invitations to act as
resource speakers under Section 5 of Presidential Decree No. 991,
as amended, as well as to take sides in discussions and debates
on the referendum-plebiscite questions under Section 7 of the
same Decree."55
The writer with Mr. Justice Makasiar and Madame Justice Munoz
Palma had dissented from the majority resolution, with all due
respect, on the ground that the non-participation of judges in
such public discussions and debates on the referendum-plebiscite
questions would preserve the traditional non-involvement of the
judiciary in public discussions of controversial issues. This is
essential for the maintenance and enhancement of the people's
faith and confidence in the judiciary. The questions of the validity
of the scheduled referendum- plebiscite and of whether there is
proper submission of the proposed amendments were precisely
subjudice by virtue of the cases at bar.
The lifting of the traditional inhibition of judges from public
discussion and debate might blemish the image and
independence of the judiciary. Aside from the fact that the fixing
of a time limit for the acceptance of their courtesy resignations to
avoid an indefinite state of insecurity of their tenure in office still
spends litigants and their relatives and friends as well as a good
sector of the public would be hesitant to air views contrary to that
of the.
Judge. Justices Makasiar and Munoz Palma who share these views
have agreed that we make them of record here, since we
understand that the permission given in the resolution is
nevertheless addressed to the personal decision and conscience
of each judge, and these views may he of some guidance to them.
BARREDO, J.,: concurring:
While I am in full agreement with the majority of my brethren that
the herein petitions should be dismissed, as in fact I vote for their
dismissal, I deem it imperative that I should state separately the
considerations that have impelled me to do so.
Perhaps, it is best that I should start by trying to disabuse the
minds of those who have doubts as to whether or not I should
have taken part in the consideration and resolution of these
cases. Indeed, it would not be befitting my position in this Highest
Tribunal of the land for me to leave unmentioned the
circumstances which have given cause, I presume, for others to
feel apprehensive that my participation in these proceedings
might detract from that degree of faith in the impartiality that the
Court's judgment herein should ordinarily command. In a way, it
can be said, of course, that I am the one most responsible for such
a rather problematical situation, and it is precisely for this reason
that I have decided to begin this opinion with a discussion of why
I have not inhibited myself, trusting most confidently that what I
have to say will be taken in the same spirit of good faith, sincerity
and purity of purpose in which I am resolved to offer the same.
Plain honesty dictates that I should make of record here the
pertinent contents of the official report of the Executive
Committee of the Katipunan ng mga Sanggunian submitted to the
Katipunan itself about the proceedings held on August 14, 1976.
It is stated in that public document that:
THE ISSUE WITH REGARDS To THE CONVENING
OF A LEGISLATIVE body came out when the
President express his desire to share his powers
with other people.
Aware of this, a five-man Committee members of the Philippine
Constitution Association (PHILCONSA) headed by Supreme Court
Justice Antonio Barredo proposed on July 28, the establishment
of 'Sangguniang Pambansa' or 'Batasang Pambansa' which would
help the President in the performance of his legislative functions.
The proposed new body will take the place of the interim National
Assembly which is considered not practical to convene at this time
considering the constitution of its membership.
Upon learning the proposal of Justice Barredo, the country's
42,000 barangay assemblies on August 1 suggested that the
people be consulted on a proposal to create a new legislative
body to replace the interim assembly provided for by the
Constitution. The suggestion of the barangay units was made
through their national association, Pambansang Katipunan ng
mga Barangay headed by Mrs. Nora Z. Patines. She said that the
people have shown in at least six instances including in the two
past referenda that they are against the convening of the interim
National Assembly. She also said that since the people had ruled
out the calling of such assembly and that they have once
proposed that the President create instead the Sangguniang
Pambansa or a legislative advisory body, then the proposal to
create a new legislative must necessarily be referred to the
people.
The federation of Kabataang Barangay, also numbering 42,000
units like their elder counterparts in the Katipunan ng mga
Barangay also asserted their own right to be heard on whatever
plans are afoot to convene a new legislative body.
On August 6, a meeting of the national directorate of PKB was
held to discuss matters pertaining to the stand of the PKB with
regards to the convening of a new legislative body. The stand of
the PKB is to create a legislative advisory council in place of the
old assembly. Two days after, August 8, the Kabataang Barangay
held a symposium and made a stand which is the creation of a
body with full legislative powers.
A nationwide clamor for the holding of meeting in their respective
localities to discuss more intellegently the proposal to create a
new legislative body was made by various urban and rural
Sangguniang Bayans.
Numerous requests made by some members coming from 75
provincial and 61 city SB assemblies, were forwarded to the
Department of Local Government and Community Development
(DLGCD).
On August 7, Local Government Secretary, Jose A. Rono granted
the request by convening the 91 member National Executive
Committee of the Pambansang Katipunan ng mga Sanggunian on
August 14 which was held at Session Hall, Quezon City. Invited
also to participate were 13 Regional Federation Presidents each
coming from the PKB and the PKKB
Actually, the extent of my active participation in the events and
deliberations that have culminated in the holding of the proposed
referendum- plebiscite on October 16, 1976, which petitioners
are here seeking to enjoin, has been more substantial and
meaningful than the above report imparts. Most importantly,
aside from being probably the first person to publicly articulate
the need for the creation of an interim legislative body to take the
place of. the interim National Assembly provided for in the
Transitory Provisions of the Constitution, as suggested in the
above report, I might say that I was the one most vehement and
persistent in publicly advocating and urging the authorities
concerned to directly submit to the people in a plebiscite
whatever amendments of the Constitution might be considered
necessary for the establishment of such substitute interim
legislature. In the aforementioned session of the Executive
Committee of the Katipunan, I discourse on the indispensability
of a new interim legislative body as the initial step towards the
early lifting of martial law and on the fundamental considerations
why in our present situation a constitutional convention would be
superfluous in amending the Constitution.
Moreover, it is a matter of public knowledge that in a speech I
delivered at the Coral Ballroom of the Hilton Hotel in the evening
of August 17, 1976, I denounced in no uncertain terms the plan to
call a constitutional convention. I reiterated the same views on
September 7, 1976 at the initial conference called by the Comelec
in the course of the information and educational campaign it was
enjoined to conduct on the subject. And looking back at the
subsequent developments up to September 22, 1976, when the
Batasang Bayan approved and the President signed the now
impugned Presidential Decree No. 1033, it is but human for me to
want to believe that to a certain extent my strong criticisms and
resolute stand against any other alternative procedure of
amending the Constitution for the purpose intended had borne
fruit.
I must hasten to add at this point, however, that in a larger sense,
the initiative for all I have done, was not altogether mine alone.
The truth of the matter is that throughout the four years of this
martial law government, it has always been my faith, as a result
of casual and occasional exchanges of thought with President
Marcos, that when the appropriate time does come, the President
would somehow make it known that in his judgment, the situation
has already so improved as to permit the implementation, if
gradual, of the constitutionally envisioned evolution of our
government from its present state to a parliamentary one.
Naturally, this would inevitably involve the establishment of a
legislative body to replace the abortive interim National
Assembly. I have kept tract of all the public and private
pronouncements of the President, and it was the result of my
reading thereof that furnished the immediate basis for my
virtually precipitating, in one way or another, the materialization
of the forthcoming referendum-plebiscite. In other words, in the
final analysis, it was the President's own attitude on the matter
that made it opportune for me to articulate my own feelings and
Ideas as to how the nation can move meaningfully towards
normalization and to publicly raise the issues that have been
ventilated by the parties in the instant cases.
I would not be human, if I did not consider myself privileged in
having been afforded by Divine Providence the opportunity to
contribute a modest share in the formulation of the steps that
should lead ultimately to the lifting of martial law in our country.
Indeed, I am certain every true Filipino is anxiously looking
forward to that eventuality. And if for having voiced the
sentiments of our people, where others would have preferred to
be comfortably silent, and if for having made public what every
Filipino must have been feeling in his heart all these years, I
should be singled out as entertaining such preconceived opinions
regarding the issues before the Court in the cases at bar as to
preclude me from taking part in their disposition, I can only say
that I do not believe there is any other Filipino in and out of the
Court today who is not equally situated as I am .
The matters that concern the Court in the instant petitions do not
involve merely the individual interests of any single person or
group of persons. Besides, the stakes in these cases affect
everyone commonly, not individually. The current of history that
has passed through the whole country in the wake of martial law
has swept all of us, sparing none, and the problem of national
survival and of restoring democratic institutions and Ideals is
seeking solution in the minds of all of us. That I have preferred to
discuss publicly my own thoughts on the matter cannot mean that
my colleagues in the Court have been indifferent and apathetic
about it, for they too are Filipinos. Articulated or not, all of us
must have our own preconceived Ideas and notions in respect to
the situation that confronts the country. To be sure, our votes and
opinions in the- major political cases in the recent past should
more or less indicate our respective basic positions relevant to the
issues now before Us. Certainly, contending counsels cannot be
entirely in the dark in this regard. I feel that it must have been
precisely because of such awareness that despite my known
public participation in the discussion of the questions herein
involved, none of the parties have sought my inhibition or
disqualification.
Actually, although it may be difficult for others to believe it, I have
never allowed my preconceptions and personal inclinations to
affect the objectivity needed in the resolution of any judicial
question before the Court. I feel I have always been able to
appreciate, fully consider and duly weigh arguments and points
raised by all counsels, even when they conflict with my previous
views. I am never beyond being convinced by good and
substantial ratiocination. Nothing has delighted me more than to
discover that somebody else has thought of more weighty
arguments refuting my own, regardless of what or whose
interests are at stake. I would not have accepted my position in
the Court had I felt I would not be able to be above my personal
prejudices. To my mind, it is not that a judge has preconceptions
that counts, it is his capacity and readiness to absorb contrary
views that are indispensable for justice to prevail. That suspicions
of prejudgment may likely arise is unavoidable; but I have always
maintained that whatever improper factors might influence a
judge will unavoidably always appear on the face of the decision.
In any event, is there better guarantee of justice when the
preconceptions of a judge are concealed?
Withal, in point of law, I belong to the school of thought that
regards members of the Supreme Court as not covered by the
general rules relative to disqualification and inhibition of judges
in cases before them. If I have in practice actually refrained from
participating in some cases, it has not been because of any legal
ground founded on said rules, but for purely personal reasons,
specially because, anyway, my vote would not have altered the
results therein.
It is my considered opinion that unlike in the cases of judges in
the lower courts, the Constitution does not envisage compulsory
disqualification or inhibition in any case by any member of the
Supreme Court. The Charter establishes a Supreme Court
"composed of a Chief Justice and fourteen Associate Justices",
with the particular qualifications therein set forth and to be
appointed in the manner therein provided. Nowhere in the
Constitution is there any indication that the legislature may
designate by law instances wherein any of the justices should not
or may not take part in the resolution of any case, much less who
should take his place. Members of the Supreme Court are definite
constitutional officers; it is not within the power of the lawmaking
body to replace them even temporarily for any reason. To put it
the other way, nobody who has not been duly appointed as a
member of the Supreme Court can sit in it at any time or for any
reason. The Judicial power is vested in the Supreme Court
composed as the Constitution ordains - that power cannot be
exercised by a Supreme Court constituted otherwise. And so,
when as in the instant where, if any of the member of Court is to
abstain from taking part, there would be no quorum - and no
court to render the decision - it is the includible duty of all the
incumbent justices to participate in the proceedings and to cast
their votes, considering that for the reasons stated above, the
provisions of Section 9 of the Judiciary Act do not appear to
conform with the concept of the office of Justice of the Supreme
Court contemplated in the Constitution.
The very nature of the office of Justice of the Supreme Court as
the tribunal of last resort and bulwark of the rights and liberties
of all the people demands that only one of dependable and
trustworthy probity should occupy the same. Absolute integrity,
mental and otherwise, must be by everyone who is appointed
thereto. The moral character of every member of the Court must
be assumed to be such that in no case whatsoever. regardless of
the issues and the parties involved, may it be feared that anyone's
life, liberty or property, much less the national interests, would
ever be in jeopardy of being unjustly and improperly subjected to
any kind of judicial sanction. In sum, every Justice of the Supreme
Court is expected to be capable of rising above himself in every
case and of having full control of his emotions and prejudices,
such that with the legal training and experience he must of
necessity be adequately equipped with, it would be indubitable
that his judgment cannot be but objectively impartial, Indeed,
even the appointing power, to whom the Justices owe their
positions, should never hope to be unduly favored by any action
of the Supreme Court. All appointments to the Court are based on
these considerations, hence the ordinary rules on inhibition and
disqualification do not have to be applied to its members.
With the preliminary matter of my individual circumstances out
of the way, I shall now address myself to the grave issues
submitted for Our resolution.
-I-
In regard to the first issue as to whether the questions posed in
the petitions herein are political or justiciable, suffice it for me to
reiterate the fundamental position I took in the Martial Law
cases,1 thus
As We enter the extremely delicate task of
resolving the grave issues thus thrust upon Us.
We are immediately encountered by absolute
verities to guide Us all the way. The first and
most important of them is that the Constitution
(Unless expressly stated otherwise, all
references to the Constitution in this discussion
are to both the 1935 and 1973 charters, since,
after all, the pertinent provisions are practically
Identical in both is the supreme law of the land.
This means among other things that all the
powers of the government and of all its officials
from the President down to the lowest emanate
from it. None of them may exercise any power
unless it can be traced thereto either textually
or by natural and logical implication. "The
second is that it is settled that the Judiciary
provisions of the Constitution point to the
Supreme Court as the ultimate arbiter of all
conflicts as to what the Constitution or any part
thereof means. While the other Departments
may adopt their own construction thereof,
when such construction is challenged by the
proper party in an appropriate case wherein a
decision would be impossible without
determining the correct construction, the
Supreme Court's word on the matter controls.
xxx xxx xxx
xxx xxx xxx
The fifth is that in the same manner that the
Executive power conferred upon the Executive
by the Constitution is complete, total and
unlimited, so also, the judicial power vested in
the Supreme Court and the inferior courts, is
the very whole of that power, without any
limitation or qualification.
xxx xxx xxx
xxx xxx xxx
From these incontrovertible postulates, it
results, first of all, that the main question
before Us is not in reality one of jurisdiction, for
there can be no conceivable controversy,
especially one involving a conflict as to the
correct construction of the Constitution, that is
not contemplated to be within the judicial
authority of the courts to hear and decide. The
judicial power of the courts being unlimited and
unqualified, it extends over all situations that
call for the as certainment and protection of the
rights of any party allegedly violated, even
when the alleged violator is the highest official
of the land or the government itself. It is,
therefore, evidence that the Court's jurisdiction
to take cognizance of and to decide the instant
petitions on their merits is beyond challenge.
In this connection, however, it must be borne in
mind that in the form of government envisaged
by the framers of the Constitution and adopted
by our people, the Court's indisputable and
plenary authority to decide does not necessarily
impose upon it the duty to interpose its fiat as
the only means of settling the conflicting claims
of the parties before it. It is ingrained in the
distribution of powers in the fundamental law
that hand in hand with the vesting of the judicial
power upon the Court, the Constitution has
coevally conferred upon it the discretion to
determine, in consideration of the
constitutional prerogatives granted to the other
Departments, when to refrain from imposing
judicial solutions and instead defer to the
judgment of the latter. It is in the very nature of
republican governments that certain matters
are left in the residual power of the people
themselves to resolve, either directly at the
polls or thru their elected representatives in the
political Departments of the government. And
these reserved matters are easily
distinguishable by their very nature, when one
studiously considers the basic functions and
responsibilities entrusted by the charter to each
of the great Departments of the government.
To cite an obvious example, the protection,
defense and preservation of the state against
internal or external aggression threatening its
very existence is far from being within the ambit
of judicial responsibility. The distinct role then
of the Supreme Court of being the final arbiter
in the determination of constitutional
controversies does not have to be asserted in
such contemplated situations, thereby to give
way to the ultimate prerogative of the people
articulated thru suffrage or thru the acts of their
political representatives they have elected for
the purpose.
Indeed, these fundamental considerations are the ones that lie at
the base of what is known in American constitutional law as the
political question doctrine, which in that jurisdiction is
unquestionably deemed to be part and parcel of the rule of law,
exactly like its apparently more attractive or popular opposite,
judicial activism, which is the fullest exertion of judicial power,
upon the theory that unless the courts intervene injustice might
prevail. It has been invoked and applied by this Court in varied
forms and mode of projection in several momentous instances in
the past, (Barcelona vs. Baker, 5 Phil. 87; Severino vs. Governor-
General, 16 Phil. 366; Abueva vs. Wood, 45 Phil. 612; Alejandrino
vs. Quezon, 46 Phil. 85; Vera vs. Avelino, 77 Phil. 192; Mabanag
vs. Lopez Vito, 78 Phil. 1; Cabin vs. Francisco, 88 Phil. 654;
Montenegro vs. Castaneda, 91 Phil. 882, Santos vs. Yatco, 55 O.G.
8641 [Minute Resolution of Nov. 6, 19591 Osmena vs. Pendatun,
Oct. 28, 1960.) and it is the main support of the stand of the
Solicitor General on the issue of jurisdiction in the cases at bar. It
is also referred to as the doctrine of judicial self-restraint or
abstention. But as the nomenclatures themselves imply, activism
and self- restraint are both subjective attitudes, not inherent
imperatives. The choice of alternatives in any particular
eventuality is naturally dictated by what in the Court's considered
opinion is what the Constitution envisions should be by in order
to accomplish the objectives of government and of nationhood.
And perhaps it may be added here to avoid confusion of concepts,
that We are not losing sight of the traditional approach based on
the doctrine of separation of powers. In truth, We perceive that
even under such mode of rationalization, the existence of power
is secondary, respect for the acts of a co-ordinate, co-equal and
independent Department being the general rule, particularly
when the issue is not encroachment of delimited areas of
functions but alleged abuse of a Department's own basic
prerogatives. (59 SCRA, pp. 379-383.)
Applying the foregoing considerations to the cases at bar, I hold
that the Court has jurisdiction to pass on the merits of the various
claims of petitioners. At the same time, however, I maintain that
the basic nature of the issues herein raised requires that the Court
should exercise its constitutionally endowed prerogative to
refrain from exerting its judicial authority in the premises.
Stripped of incidental aspects, the constitutional problem that
confronts Us stems from the absence of any clear and definite
express provision in the Charter applicable to the factual milieu
herein involved. The primary issue is, to whom, under the
circumstances, does the authority to propose amendments to the
Constitution property belong? To say, in the light of Section 15 of
Article XVII of the Charter, that that faculty lies in the interim
National Assembly is to beg the main question. Indeed, there
could be no occasion for doubt or debate, if it could ' only be
assumed that the interim National Assembly envisaged in
Sections 1 and 2 of the same Article XVII may be convoked. But
precisely, the fundamental issue We are called upon to decide is
whether or not it is still constitutionally possible to convene that
body. And relative to that question, the inquiry centers on
whether or not the political developments since the ratification of
the Constitution indicate that the people have in effect enjoined
the convening of the interim National Assembly altogether. On
this score, it is my assessment that the results of the referenda of
January 10-15, 1973, July 27-28, 1973 and February 27, 1975
clearly show that the great majority of our people, for reasons
plainly obvious to anyone who would consider the composition of
that Assembly, what with its more than 400 members
automatically voted into it by the Constitutional Convention
together with its own members, are against its being convoked at
all.
Whether or not such a manifest determination of the sentiments
of the people should be given effect without a formal amendment
of the Constitution is something that constitutional scholars may
endlessly debate on. What cannot be disputed, however, is that
the government and the nation have acquiesced to, it and have
actually operated on the basis thereof. Proclamation 1103 which,
on the predicate that the overwhelming majority of the people
desire that the interim Assembly be not convened, has ordained
the suspension of its convocation, has not been assailed either
judicially or otherwise since the date of its promulgation on
January 17, 1973.
In these premises, it is consequently the task of the Court to
determine what, under these circumstances, is the constitutional
relevance of the interim National Assembly to any proposal to
amend the Constitution at this time. It is my considered opinion
that in resolving that question, the Court must have to grapple
with the problem of what to do with the will of the people, which
although manifested in a manner not explicitly provided for in the
Constitution, was nevertheless official, and reliable, and what is
more important clear and unmistakable, despite the known
existence of well-meaning, if insufficiently substantial dissent.
Such being the situation, I hold that it is not proper for the Court
to interpose its judicial authority against the evident decision of
the people and should leave it to the political department of the
government to devise the ways and means of resolving the
resulting problem of how to amend the Constitution, so long as in
choosing the same, the ultimate constituent power is left to be
exercised by the people themselves in a well- ordered plebiscite
as required by the fundamental law.
-2-
Assuming We have to inquire into the merits of the issue relative
to the constitutional authority behind the projected amendment
of the Charter in the manner provided in Presidential Decree
1033, I hold that in the peculiar situation in which the government
is today, it is not incompatible with the Constitution for the
President to propose the subject amendments for ratification by
the people in a formal plebiscite under the supervision of the
Commission on Elections. On the contrary, in the absence of any
express prohibition in the letter of the Charter, the Presidential
Decree in question is entirely consistent with the spirit and the
principles underlying the Constitution. The correctness of this
conclusion should become even more patent, when one
considers the political developments that the people have
brought about since the ratification of the Constitution on January
17,1973.
I consider it apropos at this juncture to repeat my own words in a
speech I delivered on the occasion of the celebration of Law Day
on September 18, 1975 before the members of the Philippine
Constitution Association and their guests:
To fully comprehend the constitutional
situation in the Philippines today, one has to
bear in mind that, as I have mentioned earlier,
the martial law proclaimed under the 1935
Constitution overtook the drafting of the new
charter by the Constitutional Convention of
1971. It was inevitable, therefore, that the
delegates had to take into account not only the
developments under it but, most of all, its
declared objectives and what the President, as
its administrator, was doing to achieve them. In
this connection, it is worthy of mention that an
attempt to adjourn the convention was roundly
voted down to signify the determination of the
delegates to finish earliest their work, thereby
to accomplish the mission entrusted to them by
the people to introduce meaningful reforms in
our government and society. Indeed, the
constituent labors gained rapid tempo, but in
the process, the delegates were to realize that
the reforms they were formulating could be
best implemented if the martial law powers of
the President were to be allowed to subsist
even after the ratification of the Constitution
they were approving. This denouement was
unusual. Ordinarily, a constitution born out of a
crisis is supposed to provide all the needed
cures and can, therefore, be immediately in full
force and effect after ratification. Not so, with
our 1973 Constitution, Yes, according to the
Supreme Court, 'there is no more judicial
obstacle to the new Constitution being
considered in force and effect', but in truth, it is
not yet so in full. Let me explain.
To begin with, in analyzing the new Constitution, we must be
careful to distinguish between the body or main part thereof and
its transitory provisions. It is imperative to do so because the
transitory provisions of our Constitution are extraordinary in the
sense that obviously they have been designed to provide not only
for the transition of our government from the presidential form
under the past charter to a parliamentary one as envisaged in the
new fundamental law, but also to institutionalize, according to
the President, the reforms introduced thru the exercise of his
martial law powers. Stated differently, the transitory provisions,
as it has turned out, has in effect established a transition
government, not, I am sure, perceived by many. It is a government
that is neither presidential nor parliamentary. It is headed, of
course, by President Marcos who not on retains all his powers
under the 1935 Constitution but enjoys as well those of the
President and the Prime Minister under the new Constitution.
Most importantly, he can and does legislate alone. But to be more
accurate, I should say that he legislates alone in spite of the
existence of the interim National Assembly unequivocally
ordained by the Constitution, for the simple reason that he has
suspended the convening of said assembly by issuing
Proclamation No. 1103 purportedly 'in deference to the sovereign
will of the Filipino people' expressed in the January 10-15, 1973
referendum.
Thus, we have here the unique case of a qualified ratification. The
whole Constitution was submitted for approval or disapproval of
the people, and after the votes were counted and the affirmative
majority known, we were told that the resulting ratification was
subject to the condition that the interim National Assembly
evidently established in the Constitution as the distinctive and
indispensable element of a parliamentary form of government
should nevertheless be not convened and that no elections
should be held for about seven years, with the consequence that
we have now a parliamentary government without a parliament
and a republic without any regular election of its officials. And as
you can see, this phenomenon came into being not by virtue of
the Constitution but of the direct mandate of the sovereign
people expressed in a referendum. In other words, in an
unprecedented extra-constitutional way, we have established,
wittingly or unwittingly, a direct democracy through the Citizens
Assemblies created by Presidential Decree No. 86, which later on
have been transformed into barangays, a system of government
proclaimed by the President as 'a real achievement in
participatory democracy.' What I am trying to say, my friends, is
that as I perceive it, what is now known as constitutional
authoritarianism means, in the final analysis, that the
fundamental source of authority of our existing government may
not be necessarily found within the four corners of the
Constitution but rather in the results of periodic referendums
conducted by the Commission on Elections in a manner well
known to all of us This, as I see it, is perhaps what the President
means by saying that under the new Constitution he has extra-
ordinary powers independently of martial law - powers
sanctioned directly by the people which may not even be read in
the language of the Constitution. in brief, when we talk of the rule
of law nowadays, our frame of reference should not necessarily
be the Constitution but the outcome of referendums called from
time to time by the President. The sooner we imbibe this vital
concept the more intelligent will our perspective be in giving our
support and loyalty to the existing government. What is more, the
clearer will it be that except for the fact that all the powers of
government are being exercised by the President, we - do not in
reality have a dictatorship but an experimental type of direct
democracy."
In the foregoing disquisition, I purposely made no mention of the
referendum of February 27, 1975. It is important to note, relative
to the main issue now before Us, that it was originally planned to
ask the people in that referendum whether or not they would like
the interim National Assembly to convene, but the Comelec to
whom the task of preparing the questions was assigned was
prevailed upon not to include any -such question anymore,
precisely because it was the prevalent view even among the
delegates to the Convention as well as the members of the old
Congress concerned that that matter had already been finally
resolved in the previous referenda of January and July 1973 in the
sense that. the Assembly should not be convened comparable to
res adjudicata.
It is my position that as a result of the political developments since
January 17, 1973 the transitory provisions envisioning the
convening of the interim National Assembly have been rendered
legally inoperative. There is no doubt in my mind that for the
President to convoke the interim National Assembly as such
would be to disregard the will of the people - something no head
of a democratic republican state like ours should do. And I find it
simply logical that the reasons that motivated the people to
enjoin the convening of the Assembly - the unusually large and
unmanageable number of its members and the controversial
morality of its automatic composition consisting of all the
incumbent elective national executive and legislative officials
under the Old Constitution who would agree to join it and the
delegates themselves to the Convention who had voted in favor
of the Transitory Provisions - apply not only to the Assembly as an
ordinary legislature but perhaps more to its being a constituent
body. And to be more realistic, it is but natural to conclude that
since the people are against politicians in the old order having
anything to do with the formulation of national policies, there
must be more reasons for them to frown on said politicians taking
part in amendment of the fundamental law, specially because the
particular amendment herein involved calls for the abolition of
the interim National Assembly to which they belong and its
substitution by the Batasang Pambansa.
It is argued that in law, the qualified or conditional ratification of
a constitution is not contemplated. I disagree. It is inconsistent
with the plenary power of the people to give or withhold their
assent to a proposed Constitution to maintain that they can do so
only wholly. I cannot imagine any sound principle that can be
invoked to support the theory that the proposing authority can
limit the power of ratification of the people. As long as there are
reliable means by which only partial approval can be manifested,
no cogent reason exists why the sovereign people may not do so.
True it is that no proposed Constitution can be perfect and it may
therefore be taken with the good and the bad in it, but when
there are feasible ways by which it can be determined which
portions of it, the people disapprove. it would be stretching
technicality beyond its purported office to render the final
authority - the people impotent to act according to what they
deem best suitable to their interests.
In any event, I feel it would be of no consequence to debate at
length regarding the legal feasibility of qualified ratification.
Proclamation 1103 categorically declares that:
WHEREAS, fourteen million nine hundred
seventy six thousand five hundred sixty-one
(14,976.561) members of all the Barangays
voted for the adoption of the proposed
Constitution, as against seven hundred forty-
three thousand eight hundred sixty-nine
(743,869) who voted for its rejection; but a
majority of those who approved the new
Constitution conditioned their votes on the
demand that the interim National Assembly
provided in its Transitory Provisions should not
be convened.
and in consequence, the President has acted accordingly by not
convening the Assembly. The above factual premises of
Proclamation 1103 is not disputed by petitioners. Actually, it is
binding on the Court, the same being a political act of a coordinate
department of the government not properly assailed as arbitrary
or whimsical. At this point, it must be emphasized in relation to
the contention that a referendum is only consultative, that
Proclamation 1103, taken together with Proclamation 1102 which
proclaimed the ratification of the Constitution, must be accorded
the same legal significance as the latter proclamation, as indeed
it is part and parcel if the Act of ratification of the Constitution,
hence not only persuasive but mandatory. In the face of the
incontrovertible fact that the sovereign people have voted against
the convening of the interim National Assembly, and faced with
the problem of amending the Constitution in order precisely to
implement the people's rejection of that Assembly, the problem
of constitutional dimension that confronts Us, is how can any such
amendment be proposed for ratification by the people?
To start with, it may not be supposed that just because the office
or body designed by the constitutional convention to perform the
constituent function of formulating proposed amendments has
been rendered inoperative by the people themselves, the people
have thereby foreclosed the possibility of amending the
Constitution no matter how desirable or necessary this might be.
In this connection, I submit that by the very nature of the office
of the Presidency in the prevailing scheme of government we
have - it being the only political department of the government in
existence - it is consistent with basic principles of
constitutionalism to acknowledge the President's authority to
perform the constituent function, there being no other entity or
body lodged with the prerogative to exercise such function.
There is another consideration that leads to the same conclusion.
It is conceded by petitioners that with the non-convening of the
interim Assembly, the legislative authority has perforce fallen into
the hands of the President, if only to avoid a complete paralysis
of law-making and resulting anarchy and chaos. It is likewise
conceded that the provisions of Section 3 (2) of Article XVII invest
the President with legislative power for the duration of the
transition period. From these premises, it is safe to conclude that
in effect the President has been substituted by the people
themselves in place of the interim Assembly. Such being the case,
the President should be deemed as having been granted also the
cognate prerogative of proposing amendments to the
Constitution. In other words, the force of necessity and the
cognate nature of the act justify that the department exercising
the legislative faculty be the one to likewise perform the
constituent function that was attached to the body rendered
impotent by the people's mandate. Incidentally, I reject most
vehemently the proposition that the President may propose
amendments to the Constitution in the exercise of his martial law
powers. Under any standards, such a suggestion cannot be
reconciled with the Ideal that a Constitution is the free act of the
people.
It was suggested during the oral, argument that instead of
extending his legislative powers by proposing the amendment to
create a new legislative body, the President should issue a decree
providing for the necessary apportionment of the seats in the
Regular National Assembly and call for an election of the
members thereof and thus effect the immediate normalization of
the parliamentary government envisaged in the Constitution.
While indeed procedurally feasible, the suggestion overlooks the
imperative need recognized by the constitutional convention as
may be inferred from the obvious purpose of the transitory
provisions, for a period of preparation and acquaintance by all
concerned with the unfamiliar distinctive features and practices
of the parliamentary system. Accustomed as we are to the
presidential system, the Convention has seen to it that there
should be an interim parliament under the present leadership,
which will take the corresponding measures to effectuate the
efficient and smooth transition from the present system to the
new one. I do not believe this pattern set by the convention
should be abandoned.
The alternative of calling a constitutional convention has also
been mentioned. But, in the first place, when it is considered that
whereas, under Section 1 (1) and (2) of Article XVI, the regular
National Assembly may call a Constitutional Convention or submit
such a call for approval of the people, Section 15 of Article XVII, in
reference to interim National Assembly, does not grant said body
the prerogative of calling a convention, one can readily appreciate
that the spirit of the Constitution does not countenance or favor
the calling of a convention during the transition, if only because
such a procedure would be time consuming, cumbersome and
expensive. And when it is further noted that the requirement as
to the number of votes needed for a proposal is only a majority,
whereas it is three-fourths in respect to regular Assembly, and,
relating this point to the provision of Section 2 of Article XVI to
the effect that all ratification plebiscites must be held "not later
than three months after the approval" of the proposed
amendment by the proposing authority, the adoption of the most
simple manner of amending the charter, as that provided for in
the assailed Presidential Decree 1033 suggests itself as the one
most in accord with the intent of the fundamental law.
There is nothing strange in adopting steps not directly based on
the letter of the Constitution for the purpose of amending or
changing the same. To cite but one important precedent, as
explained by Mr. Justice Makasiar in his concurring opinion in
Javellana 2, the present Constitution of the United States was
neither proposed nor ratified in the manner ordained by the
original charter of that country, the Articles of Confederation and
Perpetual Union.
In brief. if the convening and operation of the interim National
Assembly has been effectuated through a referendum-plebiscite
in January, 1973, and ratified expressly and impliedly in two
subsequent referenda, those of July, 1973 and February, 1975,
why may not a duly held plebiscite suffice for the purpose of
creating a substitute for that Assembly? It should be borne in
mind that after all, as indicated in the whereas of the impugned
Presidential Decree, actually, the proposed amendments were
initiated by the barangays and sanggunian members. In other
words, in submitting the amendments for ratification, the
President is merely acting as the conduit thru whom a substantial
portion of the people, represented in the Katipunan ng Mga
Sanggunian, Barangay at Kabataang Barangay, seek the approval
of the people as a whole of the amendments in question. If all
these mean that the sovereign people have arrogated unto
themselves the functions relative to the amendment to the
Constitution, I would regard myself as totally devoid of legal
standing to question it, having in mind that the most fundamental
tenet on which our whole political structure rests is that
"sovereignty resides in the people and all government authority
emanates from them."
In the light of the foregoing considerations, I hold that
Presidential Decree No. 1033 does not infringe the Constitution,
if only because the specific provision it is supposed to infringe
does not exist in legal contemplation since it was coevally made
inoperative when the people ratified the Constitution on January
17, 1973. I am fully convinced that there is nothing in the
procedure of amendment contained in said decree that is
inconsistent with the fundamental principles of constitutionalism.
On the contrary, I find that the Decree, in issue conforms
admirably with the underlying tenet of our government - the
sovereignty and plenary power of the people.
On the issue of whether or not October 16, 1976 is too proximate
to enable the people to sufficiently comprehend the issues and
intelligently vote in the referendum and plebiscite set by
Presidential Decree 1033, all I can say is that while perhaps my
other colleagues are right in holding that the period given to the
people is adequate, I would leave it to the President to consider
whether or not it would be wiser to extend the same. Just to avoid
adverse comments later I wish the President orders a
postponement. But whether such postponement is ordered or
not, date of the referendum- plebiscite anywhere from October
16, 1976 to any other later date, would be of no vital import.
In conclusion, I vote to dismiss all the three petitions before Us.
MAKASIAR, J., concurring and dissenting:
Since the validity or effectivity of the proposed amendments is to
be decided ultimately by the people in their sovereign capacity,
the question is political as the term is defined in Tanada, et al. vs.
Cuenco, et al. (103 Phil. 1051), which is a bar to any judicial
inquiry, for the reasons stated in Our opinion in Javellana, et al.
vs. Executive Secretary, et al. (L-36142); Tan, et al. vs. Executive
Secretary, et al. (L,36164); Roxas, et al. vs Executive Secretary, et
al. (L-36165); Monteclaro, etc., et al. vs' Executive Secretary, et al.
(@36236); and Ditag et al. vs. Executive Secretary, et al. (L-W283,
March 31, 1973, 50 SCRA 30, 204-283). The procedure for
amendment is not important Ratification by the people is all that
is indispensable to validate an amendment. Once ratified, the
method of making the proposal and the period for submission
become relevant.
The contrary view negates the very essence of a republican
democracy - that the people are sovereign - and renders
meaningless the emphatic declaration in the very first provision
of Article II of the 1973 Constitution that the Philippines is a
republican state, sovereignty resides in the people and all
government authority emanates from them. It is axiomatic that
sovereignty is illimitable The representatives cannot dictate to the
sovereign people. They may guide them; but they cannot supplant
their judgment, Such an opposite view likewise distrusts the
wisdom of the people as much as it despises their intelligence. It
evinces a presumptuous pretension to intellectual superiority.
There are thousands upon thousands among the citizenry, who
are not in the public service, who are more learned and better
skilled than many of their elected representatives.
Moreover, WE already ruled in Aquino, et al. vs- Comelec, et al. (L
40004, Jan. 31, 1975, 62 SCRA 275, 298-302) that the President as
enforcer or administrator of martial rule during the period of
martial law can legislate; and that he has the discretion as to when
the convene the interim National Assembly depending on
prevailing conditions of peace and order. In view of the fact that
the interim National Assembly has not been convoked in
obedience to the desire of the people clearly expressed in the
1973 referenda, the President therefore remains the lone law-
making authority while martial law subsists. Consequently, he can
also exercise the power of the interim National Assembly to
propose amendments to the New Constitution (Sec. 15,,Art. XVII
If, as conceded by petitioner Vicente Guzman (L-44684), former
delegate to the 1971 Constitutional Convention which drafted the
1973 Constitution. the President, during the period of martial law,
can call a constitutional convention for the purpose, admittedly a
constituent power, it stands to reason that the President can
likewise legally propose amendments to the fundamental law.
ANTONIO, J., concurring:
At the threshold, it is necessary to clarify what is a "political
question". It must be noted that this device has been utilized by
the judiciary "to avoid determining questions it is ill equipped to
determine or that could be settled in any event only with the
effective support of the political branches."1 According to
Weston, judges, whether "personal representatives of a truly
sovereign king, or taking their seats as the creatures of a largely
popular sovereignty speaking through a written constitution,
derive their power by a delegation, which clearly or obscurely as
the case may be, deliminates and delimits their delegated
jurisdiction.* * * Judicial questions * * * are those which the
sovereign has set to be decided in the courts. Political questions,
similarly, are those which the sovereign has entrusted to the so-
called political departments of government or has reserved to be
settled by its own extra-government or has reserved to be settled
by its own extra-governmental action."2 Reflecting a similar
concept, this Court has defined a "political question" as a "matter
which is to be exercised by the people in their primary political
capacity or that has been specifically delegated to some other
department or particular officer of the government, with
discretionary power to act."3 In other words, it refers to those
questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or
executive branch of government.4
In determining whether an issue falls within the political question
category, the absence of satisfactory creterion for a judicial
determination or the appropriateness of attributing finality to the
action of the political departments of government is a dominant
consideration. This was explained by Justice Brennan in Baker v.
Carr,5 thus :
Prominent on the surface of any case held to
involve political question is found a textually
demonstrable constitutional lack of judicially
discoverrable and manageable standards for
resolving it; or the impossibility of deciding
without an initial policy determination of a kind
clearly for non-judicial discretion; or the
impossibility of a court's undertaking
independent resolution without expressing lack
of the respect due coordinate branches of
government; or an unusual need for
unquestioning adherence to a political decision
already made; or the potentiality of
embarrassment from from multifarious
pronouncements by various departments on
one question. . . .
To decide whether a matter has in a measure been committed by
the Constitution to another branch of government or retained be
the people to be decided by them in their sovereign capacity, or
whether that branch exceeds whatever authority has been
committed, is indeed a delicate exercise in constitutional
interpretation.
In Coleman v. Miller, 6 the United States Supreme Court held that
the efficacy of the ratification by state legislatures of a
constitutional amendment is a political question. On the question
of whether the State Legislature could constitutionally relative an
amendment, after the same had been previously rejected by it, it
was held that the ultimate authority over the question was in
Congress in the exercise of its control over the promulgation of
the adoption of the amendment. And in connection with the
second question of whether the amendment has lost its, vitality
through the lapse of time, the Court held that the question was
likewise political, involving "as it does ... an appraisal of a great
variety of relevant conditions, political, social and economic,
which can hardly be said to be within the appropriate range of
evidence receivable in a court of justice and as to which it would
be an extravagant extension of juridical authority to assert judicial
notice as the basis of deciding a controversy with respect to the
validity of an amendment actually ratified. On the other hand,
these conditions are appropriate for the consideration of the
political departments of the Government. The questions they
involve are essentially political and not justiciable." '
In their concurring opinions, Justices Black, Roberts, Frankfurter
and Douglas stressed that:
The Constitution grants Congress exclusive
power to control submission off constitutional
amendments. Final determination by Congress
their ratification by three-fourths of the States
has taken place 'is conclusive upon the courts.'
In the exercise of that power, Congress, of
course, is governed by the Constitution.
However, A whether submission, intervening
procedure for Congressional determination of
ratification conforms to the commands of the
Constitution, call for decisions by apolitical
department of questions of a t@ which this
Court has frequently designated 'political.' And
decision of a 'political question' by the political
department' to which the Constitution has
committed it 'conclusively binds the judges, as
 well as all other officers, citizens and subjects of
... government. Proclamation under authority
of Congress that an amendment has been
ratified will carry with it a solemn assurance by
the Congress that ratification has taken place as
the Constitution commands. Upon this
assurance a proclaimed amendment must be
accepted as a part of the Constitution, learning
to the judiciary its traditional authority of
interpretation. To the extent that the Court's
opinion in the present case even by implieding
assumes a power to make judicial
interpretation of the exclusive constitutional
authority of Congress over submission and by
ratification of amendments, we are unable to
agree.
Relying on this doctrine enunciated in Coleman v. Miller supra this
Court, in Mabanag v. Lopez Vitol, 7 speaking through Mr. Justice
Pedro Tuason, ruled that the process of constitutional
amendment, involving proposal and ratification, is a political
question. In the Mabang case, the petitioners sought to prevent
the enforcement of a resolution of Congress proposing the "Parity
Amendment" to the Philippine Constitution on the ground that it
had not been approved by the three-fourths vote of all the
members of each house as required be Article XV of the 1935
Constitution. It was claimed that three (3) Senators and eight (8)
members of the House of Representatives had been suspended
and that their membership was not considered in the
determination of the three- fourths %- ore In dismissing the
petition on the ground that the question of the validity of the
proposal was political, the Court stated:
"If ratification of an amendment is a political question, a proposal
which leads to ratification has to be a political question. The
question to steps complement each other in a scheme intended
to achieve a single objective. It is to be noted that amendatory
process as provided in Section I of Article XV of the Philippine
Constitution 'consists of (only) two distinct parts: proposal and
ratification.' There is no logic in attaching political character to
one and withholding that character from the other. Proposal to
amend the Constitution is a highly political function performed by
the Congress in its sovereign legislative capacity and committed
to its charge by the Constitution itself. ..." (At pages 4-5, Italics
supplied.)
It is true that in Gonzales v. Comelec, 8 this Court held that "the
issue whether or not a Resolution of Congress, acting as a
constituent assembly - violates the Constitution is essentially
justiciable, not political, and hence, subject to judicial review."
What was involved in Gonzales, however, was not a proposed
What was involved in Gonzales, however, was not a proposed
amendment to the Constitution but an act of
Congress,9 submitting proposed amendments to the Constitution.
Similarly, in Tolentino v. Commission an Elections, 10 what was
involved was not the validity of the proposal to lower the voting
age but rather that of the resolution of the Constitutional
Convention submitting the proposal for ratification. The question
was whether piecemeal amendments to the Constitution could
submitted to the people for approval or rejection.
II
Here, the point has been stressed that the President is acting as
agent for and in behalf of the people in proposing the
amendment. there can be no question that in the referendums of
January, 1973 and in the subsequent referendums the people had
clearly and categorically rejected the calling of the interim
National Assembly. As stated in the main opinion, the Lupang
Tagapagpaganap of the Katipunan ng mga Sanggunian, the
Pambansang Katipunan ng mga Barangay, representing 42,000
barangays, the Kabataang Barangay organizations and the various
sectoral groups had proposed the replacement of the interim
National Assembly. These barangays and the Sanggunian
assemblies are effective instrumentalities through which the
desires of the people are articulated and expressed. The Batasang
Bayan (Legislative Council), composed of nineteen (19) cabinet
members and nine (9) officials with cabinet rank, and ninety-one
(91) members of the Lupang Tagapagpaganap (Executive
Committee) of the Katipunan ng mga Sangguniang Bayani voted
in their special session to submit directly to the people in a
plebiscite on October 16, 1976 the afore-mentioned
constitutional amendments. Through the Pambansang Katipunan
by Barangay and the Pampurok ng Katipunan Sangguniang Bayan,
the people have expressed their desire not only to abolish the
interim National Assembly, but to replace it with a more
representative body acceptable to them in order to effect the
desirable constitutional changes necessary to hasten the political
evolution of the government towards the parliamentary system,
while at the same time ensuring that the gains of the New Society,
which are vital to the welfare of the people, shall be safeguarded.
The proposed constitutional amendments, therefore, represent a
consensus of the people.
It would be futile to insist that the intemi National Assembly
should have been convened to propose those amendments
pursuant to Section 15 of Article XVII of the Constitution. This
Court, in the case of Aquino v. Commission or Elections, 11 took
judicial notice of the fact that in the referendum of January, 1973,
a majority of those who approved the new Constitution
conditioned their votes on the demand that the interim National
Assembly provided in the Transitory Provisions should not be and
the President "in deference to the sovereign will of the Filipino
people" declared that the convening of said body shall be
suspended.12 As this Court observed in the Aquino case:
His decision to defer the initial convocation of
the byiitttit National Assembly was supported
by the sovereign people at the by referendum
in January, 1973 when the people voted to
postpone the convening of the interim National
Assembly until after at least seven (7) years
from the approval of the new Constitution. And
the reason why the same question was
eliminated from the questions to be submitted
at the referendum on February 27, 1975, is that
even some members of the Congress and
delegates of the Constitutional Convention,
who are already byjso ofitto members of the
intetini National Assembly are against such
inclusion; because the issue was already
bycciled in the January, 1973 referendum by the
sovereign people indicating thereby their
disenchantment with any Assembly as the
former Congress failed to institutionalize the
reforms they demanded and wasted public
funds through endless debates without
relieving the suffering of the general mass of
citizenry (p. 302.) The action of the President in
 suspending the convening of the interim
National Assembly has met the overwhelming
approval of the people in subsequent
referenda.
Since it was the action by the people that gave binding force and
effect to the new Constitution, then it must be accepted as a
necessary consequence that their objection against the
immediate convening of the interim National Assembly must be
respected as a positive mandate of the sovereign.
In the Philippines, which is a unitary state, sovereignty "resides in
the people and all government authority emanates from
them."13 The term "People" as sovereign is comprehensive in its
context. The people, as sovereign creator of all political reality, is
not merely the enfranchised citizens but the political unity of the
people. 14 It connotes, therefore, a people which exists not only
in the urgent present but in the continuum of history. The
assumption that the opinion of The People as voters can be
treated as the expression of the interests of the People as a
historic community was, to the distinguished American journalist
and public philosopher, Walter Lipunan, unwarranted.
Because of the discrepancy between The
People as Voters and the People as the
corporate nation, the voters have no title to
consider themselves the proprietors of the
commonwealth and to claim that their interests
are Identical to the public interest. A prevailing
plurality of the voters are not The People. The
claim that they are is a bogus title invoked to
justify the usurpation of the executive power by
representative assemblies and the intimidation
of public men by demagogue politicians. In fact
demagoguery can be described as the sleight of
hand by which a faction of The People as voters
are invested with the authority of The People.
That is why so many crimes are committed in
the People's name 15
In Gonzales v. Comelec, supra, the Court clearly emphasized that
the power to propose amendments or to amend the Constitution
is part of the inherent power of the people as the repository of
sovereignty in a republican state. While Congress may propose
amendments to the Constitution, it acts pursuant to authority
granted to it by the people through the Constitution. Both the
power to propose and the authority to approve, therefore, inhere
in the people as the bearer of the Constitution making power.
Absent an interim National Assembly upon whom the people,
through the Constitution, have delegated the authority to
exercise constituent powers, it follows from necessity that either
the people should exercise that power themselves or through any
other instrumentality they may choose. For Law, like Nature,
abhors a vacuum (natural vacuum abhorret).
The question then is whether the President has authority to act
for the people in submitting such proposals for ratification at the
plebiscite of October 16. The political character of the question is,
therefore, particularly manifest, considering that ultimately it is
the people who will decide whether the President has such
authority. It certainly involves a matter which is to be exercised
by the people in their sovereign capacity, hence, it is essentially
political, not judicial.
While it is true that the constituent power is not to be confuse
with legislative power in general because the prerogative to
propose amendments is not embraced within the context of
ordinary lawmaking, it must be noted that the proposals to be
submitted for ratification in the forthcoming referendum are, in
the final analysis, actually not of the President but directly of the
people themselves, speaking through their authorized
instrumentalities.
As the Chief Justice aptly stated in his concurring opinion in this
case:
... The President merely formalized the said
proposals in Presidential Decree No. 1033. It
being conceded in all quarters that sovereignty
resides in the people and it having been
demonstrated that their constituent power to
amend the Constitution has not been delegated
by them to any instrumentality of the
Government during the present stage of the
transition period of our political development,
the conclusion is ineluctable that their exertion
of that residuary power cannot be vulnerable to
any constitutional challenge as beingultravires.
Accordingly, without venturing to rule on
whether or not the President is vested with
constituent power - as it does not appear
necessary to do so in the premises - the
proposals here challenged, being acts of the
sovereign people no less, cannot be said to be
afflicted with unconstitutionality. A fortiori, the
concomitant authority to call a plebiscite and to
appropriate funds therefor is even less
vulnerable not only because the President, in
exercising said authority, has acted as a mere
ofiffet byf of the people who made the
proposals, but likewise because the said
authority is legislative in nature rather than
constituent.
This is but a recognition that the People of the
Philippines have the inherent, sole and
exclusive right of regulating their own
government, and of altering or abolishing their
Constitution whenever it may be necessary to
their safety or happiness. There appears to be
no justification, under the existing,
circumstances, for a Court to create by
implication a limitation on - the sovereign
power of the people. As has been clearly
explained in a previous case:
There is nothing in the nature of the submission
which should cause the free exercise of it to be
obstructed, or that could render it dangerous to
the stability of the government; because the
measure derives all its vital force from the
action of the people at the ballot box, and there
can never be danger in submitting in an
established form to a free people, the
proposition whether they will change their
fundamental law The means provided for the
exercise of their Sovereign right of changing
their constitution should receive such a
 construction as not to trammel the exercise of
the right. Difficulties and embarrassments in its
exercise are in derogation of the right of free
government, which is inherent in the people;
and the best security against tumult and
revolution is the free and unobstructed
privilege to the people of the State to change
their constitution in the mode prescribed by the
instrument.
III
The paramount consideration that impelled Us to arrive at the
foregoing opinion is the necessity of ensuring popular control
over the constituent power. "If the people are to control the
constituent power - the power to make and change the
fundamental law of the State," observed Wheeler," "the process
of Constitutional change must not be based too heavily upon
existing agencies of government." Indeed, the basic premise of
republicanism is that the ordinary citizen, the common man. can
be trusted to determine his political destiny. Therefore, it is time
that the people should be accorded the fullest opportunity to
decide the laws that shall provide for their governance. For in the
ultimate analysis, the success of the national endeavor shall
depend on the vision, discipline and I by ininess of the moqqqtai
will of every Filipino.
IN VIEW OF THE FOREGOING CONSIDERATIONS, We vote to
dismiss the petitions.
Aquino, J., concur.
MUNOZ PALMA, J., dissenting:
I concur fully with the remarkably frank (so characteristic of him)
dissenting opinion of my distinguished colleague, Justice Claudio
Teehankee. If I am writing this brief statement it is only to
unburden myself of some thoughts which trouble my mind and
leave my conscience with no rest nor peace.
Generally, one who dissents from a majority view of the Court
takes a lonely and at times precarious road, the burden byeing
lightened only by the thought that in this grave task of
administering justice, when matters of conscience are at issue,
one must be prepared to espouse and embrace a rightful cause
however unpopular it may be.
1. That sovereignty resides in the people and all government
authority emanates from them is a fundamental, basic principle
of government which cannot be disputed, but when the people
have opted to govern themselves under the mantle of a written
Constitution, each and every citizen, from the highest to the
lowliest, has the sacred duty to respect and obey the Character
they have so ordained.
By the Constitution which they establish, they
not only tie up he hands of their official
agencies, but their own hands as well; and
neither the officers of the state, nor the whole
people as an aggregate body, are at liberty to
take action in opposition to this fundamental
law. (Cooley's Constitutional Limitations, 7th
Ed. p. 56, Italics Our).
The afore-quoted passage from the eminent jurist and author
Judge Cooley although based on declarations of law of more than
a century ago, lays down a principle which to my mind is one of
the enduring cornerstones of the Rule of Law. it is a principle with
which I have been familiar as a student of law under the tutelage
of revered Professors, Dr. Vicente G. Sinco and Justice Jose P.
Laurel, and which I pray will prevail at all times to ensure the
existence of a free, stable, and civilized society.
The Filipino people,. wanting to ensure to themselves a
democratic republican form of government, have promulgated a
Constitution whereby the power to govern themselves has been
entrusted to and distributed among three branches of
government; they have also mandated in clear and unmistakable
terms the method by which provisions in their fundamental
Charter may be amended or revised. Having done so, the people
are bound by these constitutional limitations. For while there is
no surrender or abdication of the people's ultimate authority to
amend, revise, or adopt a new Constitution, sound reason
demands that they keep themselves within the procedural
bounds of the existing fundamental law. The right of the people
to amend or change their Constitution if and when the need arises
is not to be denied, but we assert that absent a revolutionary
state or condition in the country the change must be
accomplished through the ordinary, regular and legitimate
processes provided for in the Constitution.'
I cannot subscribe therefore to the view taken by the Solicitor
General that the people, being sovereign, have the authority to
amend the Constitution even in a manner different from and
contrary to that expressly provided for in that instrument, and
that the amendatory process is intended more as a limitation of a
power rather than a grant of power to a particular agency and it
should not be construed as limiting the ultimate sovereign will of
the people to decide on amendments to the Constitution .2 Such
a view will seriously undermine the very existence of a
constitutional government and will permit anarchy and/or mob
rule to set afoot and prevail. Was it the Greek philosopher Plato
who warned that the rule of the mob is a prelude to the rule of
the tyrant?
I would use the following excerpt from Bernas, S.J. 'The 1973
Philippine Constitution, Notes and Cases" as relevant to my point:
. . . the amendatory provisions are called a
'constitution of sovereighty' because they
define the constitutional meaning of
'sovereignty of the people.' Popular
sovereignty, as embodied in the Philippine
Constitution, is not extreme popular
sovereignty. As one American writer put it:
A constitution like the American one serves as a
basic check upon the popular will at any given
time. It is the distinctive function of such
written document to classify certain things as
legal fundamentals; these fundamentals may
not be changed except by the slow and
cumbersome process of amendment. The
people themselves have decided, in
constitutional convention assembled, to limit
themselves ana future generations in the
exercise of the sovereign power which they
would otherwise possess. And it is precisely
such limitation that enables those subject to
 governmental authority to appeal from the
people drunk to the people sober in time of
excitement and hysteria. The Constitution, in
the neat phrase of the Iowa court, is the
protector of the people against injury by the
.people. *
Truly, what need is there for providing in the Constitution a
process by which the fundamental law may be amended if, after
all, the people by themselves can set the same at naught even in
times of peace when civil authority reigns supreme? To go along
with the respondents' theory in this regard is to render written
Constitutions useless or mere "ropes of sand allowing for a
government of men instead of one of laws. For it cannot be
discounted that a situation may arise where the people are
heralded to action at a point of a gun or by the fiery eloquence of
a demagogue, and where passion overpowers reason, and mass
action overthrows legal processes. History has recorded such
instances, and I can think of no better example than that of Jesus
Christ of Judea who was followed and loved by the people while
curing the sick, making the lame walk and the blind see, but
shortly was condemned by the same people turned into fanatic
rabble crying out "Crucify Him, Crucify Him" upon being incited
into action by chief priests and elders of Jerusalem. Yes, to quote
once more from Judge Cooley:
A good Constitution should be beyond the
reason of temporary excitement and popular
caprice or passion. It is needed for stability and
steadiness; it must yield to the thought of the
people; not to the whim of the people, or the
thought evolved in excitement or hot blood, but
the sober second thought, which alone, if the
government is to be sale can be allowed
efficiency. .... Changes in government are to be
feared unless the benefit is certain." (quoted in
Ellingham v. Dye, 99 N.E. 1, 15,)3
Crawford v. Gilchrist 64 Fla. 41., 59., So. 963, Ann. Cas. 1914B,
916; State v. Hall, 159 N.W., 281; Opinion of Marshall, J. in State
ex. rel. Poster v. Marcus, 152 N.W., 419;
From Kochier v. Hill, Vol. 15, N.W., 609, we quote:
xxx xxx xxx
It has been said that changes in the constitution
may be introduced in disregard of its provisions;
that if the majority of the people desire a
change the majority must be respected, no
matter how the change may be effected; and
that the change, if revolution, is peaceful
resolution. ...
We fear that the advocates of this new doctrine,
in a zeal to accomplish an end which the
majority of the people desire, have looked at
but one phase of the question, and have not
fully considered the terrible consequences
which would almost certainly follow a
recognition of the doctrine for which they
contend. It may be that the incorporation of this
amendment in the constitution, even if the
constitution has to be broken to accomplish it,
would not of itself produce any serious results.
But if it should be done by sanctioning the
doctrine contended for, a precedent would be
set which would plague the state for all future
time. A Banquo's ghost would arise at our
incantation which would not down at our
bidding.
xxx xxx xxx
We ought to ponder long before we adopt a
doctrine so fraught with danger to republican
institutions. ...
xxx xxx xxx
Appellants' counsel cite and rely upon section 2, art. 1, of the
constitution of the staff This section is a portion of the bill of
rights, and is as follows: 'All political power is inherent in the
people. Government is instituted for the protection, security, and
benefit of of the people; and they have the right at all times to
alter or reform the same, whenever the public good may require.'
Abstractly considered, there can bye no doubt of the correctness
of the propositions embraced in this suction. These principles are
older than constitutions and older than governments. The people
did not derive the rights referred to by on the constitution. and,
in their nature, thee are such that the people cannot surrender
them ... .
2. Presidential Decrees Nos. 991 and 1033 which call for a national
referendum-plebiscite on October 16, 1976 for the purpose,
among other things, of amending certain provisions of the 1973
Constitution are null and void as they contravene the express
provisions on the amending process of the 1973 Constitution laid
down in Article XVI, Section 1 (1) and Article XVII, Section 15, more
particularly the latter which applies during the present transition
period. The Opinion of Justice Teehankee discusses in detail this
particular matter.
I would just wish to stress the point that although at present there
is no by tterint National Assembly which may propose
amendments to the Constitution, the existence of a so-called
"vacuum" or "hiatus" does not justify a transgression of the
constitutional provisions on the manner of amending the
fundamental law. We cannot cure one infirmity - the existence of
a "vacuum" caused by the non-convening of the interim National
Assembly - with another infirmity, that is, doing violence to the
Charter.
All great mutations shake and disorder a state.
Good does not necessarily succeed evil; another
evil may succeed and a worse. (Am. Law Rev.
1889, p. 311., quoted in Ellingham v. Dye, supra,
p. 15)
Respondents contend that the calling of the referendum-
plebiscite for the purpose indicated is a step necessary to restore
the state of normalcy in the country. To my mind, the only
possible measure that will lead our country and people to a
condition of normalcy is the lifting or ending of the state of martial
law. If I am constrained to make this statement it is because so
much stress was given during the hearings of these cases on this
particular point, leaving one with the impression that for
petitioners to contest the holding of the October 16 referendum-
plebiscite is for them to assume a position of blocking or installing
the lifting of martial law, which I believe is unfair to the
petitioners. Frankly, I cannot see the connection between the
two. My esteemed colleagues should pardon me therefore if I had
ventured to state that the simple solution to the simple solution
to the present dilemma is the lifting of martial law and the
implementation of the constitutional provisions which will usher
in the parliamentary form of government ordained in the
Constitution, which, as proclaimed in Proclamation 1102, the
people themselves have ratified.
If the people have indeed ratified the 1973 Constitution, then
they are bound by their act and cannot escape from the
pretended unfavorable consequences thereof, the only y being to
set in motion the constitutional machinery by which the supposed
desired amendments may properly be adopted and submitted to
the electorate for ratification. Constitutional processes are to be
observed strictly, if we have to maintain and preserve the system
of government decreed under the fundamental Charter. As said
by Justice Enrique Fernando in Mutuc vs. Commission on
Elections
... The concept of the Constitution as the
fundamental law, setting forth the criterion for
the validity of any public act whether
proceeding from the highest official or the
lowest funcitonary, is a postulate of our system
of government. That is to manifest fealty to the
rule of law, with priority accorded to that which
occupies the topmost rung in the legal
hierarchy. ... (36 SCRA, 228, 234, italics Ours)
A contrary view would lead to disastrous consequences for, in the
words of Chief Justice Cox of the Supreme Court of Indiana in
Ellingham v. Dye, (supra, p. 7) liberty and popular sovereignty are
not meant to give rein to passion or thoughtless impulse but to
allow the exercise of power by the people for the general good by
tistlercoitaitt restraints of law.3 . The true question before Us is is
one of power. Does the incumbent President of the Philippines
possess constituent powers? Again, the negative answer is
explained in detail in the dissenting opinion of Justice Teehankee.
Respondents would justify the incumbent President's exercise of
constituent powers on theory that he is vested with legislative
powers as held by this Court in Benigno S. Aquino, Jr., et al. vs.
Commission on Elections, et al., L-40004, January 31, 1975. 1 wish
to stress that although in my separate opinion in said case I agreed
that Section 3 (2) of the Transitory provisions grants to the
incumbent President legislative powers, I qualified my statement
as follows:
.... As to, whether, or not, this unlimited
legislative qqqjwwel of the President continues
by exist even after the ratification of the
Constitution is a matter which I am not ready to
concede at the moment, and which at any rate
I believe is not essential in resolving this Petition
for reasons to be given later. Nonetheless, I
hold the view that the President is empowered
to issue proclamations, orders, decrees, etc. to
carry out and implement the objectives of the
proclamation of martial law be it under the
1935 or 1973 Constitution, and for the orderly
and efficient functioning of the government, its
instrumentalities, and agencies. This grant of
legislative power is necessary to fill up a vacuum
during the transition period when the interim
National Assembly is not yet convened and
functioning, for otherwise, there will be a
disruption of official functions resulting in a
collapse of the government and of the existing
social order. (62 SCRA, pp. 275,347)
I believe it is not disputed that legislative power is essentially
different from constituent power; one does not encompass the
other unless so specified in the Charter, and the 1973 Constitution
contains provisions in this regard. This is well-explained in Justice
Teehankee's Opinion. The state of necessity brought about by the
current political situation, invoked by the respondents, provides
no source of power to propose amendments to the existing
Constitution. Must we "bend the Constitution to suit the law of
the hour or cure its defects "by inflicting upon it a wound which
nothing can heal commit one assault after the other "until all
respect for the fundamental law is lost and the powers of
government are just what those in authority please to call
them?'"5 Or can we now ignore what this Court, speaking through
Justice Barredo, said in Tolentino vs. Comelec:
... let those who would put aside, invoking
grounds at best controversial, any mandate of
the fundamental law purportedly by order to
attain some laudable objective bear in mind
that someday somehow others with
purportedly more laudable objectives may take
advantages of the precedent in continue the
destruction of the Constitution, making those
who laid down the precedent of justifying
deviations from the requirements of the
Constitution the victims of their own folly. 6
Respondents emphatically assert that the final word is the
people's word and that ultimately it is in the hands of the people
where the final decision rests. (Comment, pp. 18, 19, 22) Granting
in gratia argument that it is so, let it be an expression of the will
of the people a normal political situation and not under the aegis
of martial rule for as I have stated in Aquino vs. Comelec, et al.,
supra, a referendum (and now a plebiscite) held under a regime
of martial law can be of no far reaching significance because it is
being accomplished under an atmosphere or climate of fear as it
entails a wide area of curtailment and infringement of individual
rights, such as, human liberty, property rights, rights of free
expression and assembly, protection against unreasonable
searches and seizures, liberty of abode and of travel, and so on.
4. The other issues such as the sufficiency and proper submission
of the proposed amendments for ratification by the people are
expounded in Justice Teehankee's Opinion. I wish to stress indeed
that it is incorrect to state that the thrust of the proposed
amendments is the abolition of the interim National Assembly
and its substitution with an "interim Batasang Pambansa their in
by in Proposed amendment No. 6 will permit or allow the
concentration of power in one man - the Executive - Prime
Minister or President or whatever you may call him - for it gives
him expressly (which the 1973 Constitution or the 1935
Constitution does not) legislative powers even during the
existence of the appropriate legislative body, dependent solely on
the executive's judgment on the existence of a grave emergency
or a threat or imminence thereof **
I must be forgiven if, not concerned with the present, I am
haunted however by what can happen in the future, when we
shall all be gone. Verily, this is a matter of grave concern which
necessitates full, mature, sober deliberation of the people but
which they can do only in a climate of freedom without the
restraints of martial law. I close, remembering what Claro M.
Recto, President of the Constitutional Convention which drafted
the 1935 Philippine Constitution, once said: .
... Nor is it enough that our people possess a
written constitution in order that their
government may be called constitutional. To be
deserving of this name, and to drive away all
lanirer of anarchy as well as of dictatorship
whether by one man or a few, it is necessary
that both the government authorities and the
people faithfully observe and obey the
constitution, and that the citizens be duly
conversant not only with their rights but also
with their duties...7
Jose P. Laurel who served his people as Justice of the Supreme
Court of this country gave this reminder; the grave and perilous
task of halting transgressions and vindicating cherished rights is
reposed mainly oil the Judiciary and therefore let the Courts be
the vestal keepers of the purity and sanctity of our Constitution.'
On the basis of the foregoing, I vote to declare Presidential
Decrees Nos. 991 and 1033 unconstitutional and enjoin the
implementation thereof.
CONCEPCION JR., J., concurring:
I vote for the dismissal of the petitions.
1. The issue is not political and therefore justiciable.
The term "political question", as this Court has previously defined,
refers to those questions which, under the constitution, are to be
decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the
Legislature or executive branch of the Government. It is
concerned with the issues dependent upon the wisdom, not
legality, of a particular measure.1
Here, the question raised is whether the President has authority
to propose to the people amendments to the Constitution which
the petitioners claim is vested solely upon the National Assembly,
the constitutional convention called for the purpose, and the by
the National Assembly. This is not a political question since it
involves the determination of conflicting claims of authority
under the constitution.
In Gonzales vs. Comelec, 2 this Court, resolving the issue of
whether or not a Resolution of Congress, acting as a constituent
assembly, violates the Constitution, ruled that the question is
essentially justiciable, not political, and hence, subject to judicial
review.
In Tolentino vs. Comelec 3 this Court finally dispelled all doubts as
to its position regarding its jurisdiction vis-a-vis the
constitutionality of the acts of Congress, acting as a constituent
assembly, as well as those of a constitutional convention called
for the purpose of proposing amendments to the constitution.
Insofar as observance of constitutional provisions on the
procedure for amending the constitution is concerned, the issue
is cognizable by this Court under its powers of judicial review.
2. As to the merits, a brief backdrop of the decision to hold the
referendum-plebiscite will help resolve the issue. It is to be noted
that under the 1973 Constitution, an interim National Assembly
was organized to bring about an orderly transition from the
presidential to the parliamentary system of government.' The
people, however, probably distrustful of the members who are
old time politicians and constitutional delegates who had voted
themselves by to membership in the interim National Assembly,
voted against the convening of the said interim assembly for at
least seven years thus creating a political stalemate and a
consequent delay' in the transformation of the government into
the parliamentary system. To resolve the impasse, the President,
at the instance of the barangays and sanggunian assemblies
through their duly authorized instrumentalities who
recommended a study of the feasibility of abolishing and
replacing the by interim National Assembly with another interim
body truly representative of the people in a reformed society,
issued Presidential Decree No. 991, on September 2, 1976, calling
for a national referendum on October -16, 1976 to ascertain the
wishes of the people as to the ways and means that may be
available to attain the objective; providing for a period of
educational and information campaign on the issues; and
establishing the mechanics and manner for holding thereof. But
the people, through their barangays, addressed resolutions to the
Batasang Bayan, expressing their desire to have the constitution
amended, thus prompting the President to issue Presidential
Decree No. 1033, stating the questions to @ submitted to the
people in the referendum-plebiscite on October 16,1976.
As will be seen, the authority to amend the Constitution was
removed from the interim National Assembly and transferred to
the seat of sovereignty itself. Since the Constitution emanates
from the people who are the repository of all political powers,
their authority to amend the Constitution through the means they
have adopted, aside from those mentioned in the Constitution,
cannot be gainsaid. Not much reflection is also needed to show
that the President did not exercise his martial law legislative
powers when he proposed the amendments to the Constitution.
He was merely acting as an instrument to carry out the will of the
people. Neither could he convene the interim National Assembly,
as suggested by the petitioners, without doing violence to the
people's will expressed overwhelmingly when they decided
against convening the interim assembly for at least seven years.
3. The period granted to the people to consider the proposed
amendments is reasonably long and enough to afford intelligent
discussion of the issues to be voted upon. PD 991 has required the
barangays to hold assemblies or meetings to discuss and debate
on the referendum questions, which in fact they have been doing.
Considering that the proposed amendments came from the
representatives of the people themselves, the people must have
already formed a decision by this time on what stand to take on
the proposed amendments come the day for the plebiscite.
Besides, the Constitution itself requires the holding of a plebiscite
for the ratification of an amendment not later than three (3)
months after the approval of such amendment or revision but
without setting a definite period within which such plebiscite shall
not be held. From this I can only conclude that the framers of the
Constitution desired that only a short period shall elapse from the
approval of such amendment or resolution to its ratification by
the people.